PART VE+W+SINCOME AND CAPITAL

Modifications etc. (not altering text)

CHAPTER VE+W+Sother income

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;

[F1(c)jobseeker’s allowance;]

[F2(d)[F3child benefit to which paragraph (2D) refers;]]

(e)[F4working tax credit];

(f)[F5child tax credit],

[F6(g)a personal pension scheme[F7, occupational pension scheme]F8[F9... or a payment made by the Board of the Pension Protection Fund] where the claimant is aged under 60,]

F10(h). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F11(i)any sum to which paragraph 44(2)(a) of Schedule 10 (capital to be disregarded) applies which is administered in the way referred to in paragraph 44(1)(a);

(ia)any sum to which paragraph 45(a) of Schedule 10 refers; or]

[F12(j)rehabilitation allowance made under section 2 of the Employment and Training Act 1973.]

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 [F13it could be expected to be acquired were an application made].

[F14(2ZA) A claimant who has attained the age of 60 shall be treated as possessing—

(a)the amount of any income from an occupational pension scheme, [F15a personal pension schemeF16... or the Board of the Pension Protection Fund]—

(i)for which no claim has been made, and

(ii)to which he might expect to be entitled if a claim for it were made;

(b)income from an occupational pension scheme which the claimant elected to defer,

but only from the date on which it could be expected to be acquired were an application for it to be made.]

[F17(2A) This paragraph applies where a person aged not less than 60—

(a)is entitled to money purchase benefits under an occupational pension scheme or a personal pension scheme;

(b)fails to purchase an annuity with the funds available in that scheme; and

(c)either—

(i)defers in whole or in part the payment of any income which would have been payable to him by his pension fund holder, or

(ii)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.

(2AA) Where paragraph (2A) applies, the amount of any income foregone shall be treated as possessed by that person, but only from the date on which it could be expected to be acquired were an application for it to be made.]

[F18(2B) The amount of any income foregone in a case [F19where paragraph (2A)(c)(i) or (ii)] applies shall be the maximum amount of income which may be withdrawn from the fund and shall be determined by the [F20Secretary of State] 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 [F21where paragraph (2A)(c)(iii)] applies shall be the income that the [F22person] could have received without purchasing an annuity had the funds held under the [F23relevant occupational or personal pension scheme] F24... been held [F25under a scheme] where income withdrawal was available and shall be determined in the manner specified in paragraph (2B).]

[F26(2CA) In paragraph (2A), “money purchase benefits” has the meaning it has in the Pension Schemes Act 1993.]

[F27(2D) [F28This paragraph refers to child benefit payable in accordance with regulation 2(1)(a)(ii) of the Child Benefit and Social Security (Fixing and Adjustment of Rates) Regulations 1976 (weekly rate for only, elder or eldest child of a lone parent) but only to the extent that it exceeds the amount specified in regulation 2(1)(a)(i) of those Regulations.]]

(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 [F298 or 9] of the Social Security (Payments on Account, Overpayment and Recovery) Regulations [F291988] (duplication and prescribed payments or maintenance payments) and not made on or before the date prescribed in relation to it,

shall [F30except for any amount to which paragraph (3A)[F31, (3B) or (3C)] applies] be treated as possessed by the claimant.

[F32(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 F33... due to an insufficiency of resources.]

[F32(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 liabilitiesF34....]

[F35(3C) This paragraph applies to any earnings which are due to an employed earner on the termination of his employment by reason of redundancy but which have not been paid to him.]

[F36(4) [F37Any payment of income, other than a payment of income specified in paragraph (4ZA)], made—

(a)to a third party in respect of a single claimant or [F38in respect of a member of the family] [F38his partner] (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, [F39a payment from the Armed Forces and Reserve Forces Compensation Scheme,] a war disablement pension[F40, war widow’s pension [F41or war widower’s pension] or a pension payable to a person as a [F42widow, widower or surviving civil partner] under F43... 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, [F44or by that member, if it is paid to any member of that family] [F44or by his partner, if it is paid to his partner];

[F45(ia)in a case where that payment is a payment of an occupational pension[F46, a pension or other periodical payment made under a personal pension scheme or a payment made by the Board of the Pension Protection Fund], as possessed by that single claimant or, as the case may be, by [F47that member] [F47the claimant’s partner];]

(ii)in any other case, as possessed by that single claimant [F48or by that member] [F48or his partner] to the extent that it is used for the food, ordinary clothing or footwear, household fuel, rent F49... for which housing benefit is payable, [F50or]F51... any housing costs to the extent that they are met under regulations 17(1)(e) or 18(1)(f) (housing costs) F52... F53... F54...), of that single claimant or, as the case may be, [F48of any member of that family] [F48of his partner][F55, or is used for any [F56council tax] or water charges for which that claimant or [F48member is liable] [F48partner is liable];]

(b)[F57to 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;]

[F57to a single claimant or his partner in respect of a third party (but not in respect of another member of his family) shall be treated as possessed by that single claimant or, as the case may be, his partner, to the extent that it is kept or used by him or used by or on behalf of his partner;]

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 [F58to the third party].]

[F59(4ZA) Paragraph (4) shall not apply in respect of a payment of income made—

(a)under the Macfarlane Trust, the Macfarlane (Special Payments) Trust, the Macfarlane (Special Payments) (No.2) Trust, the Fund, the Eileen Trust or the Independent Living [F60Fund (2006)];

(b)pursuant to section 19(1)(a) of the Coal Industry Act 1994 (concessionary coal); or

(c)pursuant to section 2 of the Employment and Training Act 1973 in respect of a person’s participation—

(i)in an employment programme specified in regulation 75(1)(a)(ii) of the Jobseeker’s Allowance Regulations 1996;

(ii)in a training scheme specified in regulation 75(1)(b)(ii) of those Regulations; or

[F61(iia)in the Intensive Activity Period specified in regulation 75(1)(a)(iv) of those RegulationsF62...; or]

(iii)in a qualifying course within the meaning specified in regulation 17A(7) of those Regulations.]

[F63(d)under an occupational pension scheme[F64, in respect of a pension or other periodical payment made under a personal pension scheme or a payment made by the Board of the Pension Protection Fund] where—

(i)a bankruptcy order has been made in respect of the person in respect of whom the payment has been made or, in Scotland, the estate of that person is subject to sequestration or a judicial factor has been appointed on that person’s estate under section 41 of the Solicitors (Scotland) Act 1980;

(ii)the payment is made to the trustee in bankruptcy or any other person acting on behalf of the creditors; and

(iii)the person referred to in (i) and [F65any member of his family] [F65his partner (if any)] does not possess, or is not treated as possessing, any other income apart from that payment.]

[F66(4A) Where the claimant [F67resides in a care home, an Abbeyfield Home or an independent hospital, or is temporarily absent from such a home or hospital], 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 [F68or a member of his family in that home shall be treated as possessed by the claimant or by that member of his family] [F68or his partner in that home [F69or hospital] shall be treated as possessed by the claimant or his partner].]

(5) Where a claimant's earnings are not ascertainable at the time of the determination of the claim or of any [F70revision or supersession the Secretary of State] 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.

[F71(5A) Where the amount of a subsistence allowance paid to a claimant in a benefit week is less than the amount of income-based jobseeker’s allowance that person would have received in that benefit week had it been payable to him, less 50p, he shall be treated as possessing the amount which is equal to the amount of income-based jobseeker’s allowance which he would have received in that week, less 50p.]

(6) [F72Subject to paragraph (6A),] 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 [F73Secretary of State] 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 serviceF74... .

[F75(6A) Paragraph (6) shall not apply—

(a)to a claimant who is engaged by a charitable or voluntary organisation or who is a volunteer if the [F76Secretary of State] is satisfied in any of those cases that it is reasonable for him to provide the service free of charge;

[F77(b)in a case where the service is performed in connection with–

(i)the claimant’s participation in an employment or training programme in accordance with regulation 19(1)(q) of the Jobseeker’s Allowance Regulations 1996[F78, other than where the service is performed in connection with the claimant’s participation in the Intensive Activity Period specified in regulation 75(1)(a)(iv) of those RegulationsF79...]; or

(ii)the claimant’s or the claimant’s partner’s participation in an employment or training programme as defined in regulation 19(3) of those Regulations for which a training allowance is not payable or, where such an allowance is payable, it is payable for the sole purpose of reimbursement of travelling or meal expenses to the person participating in that programme; or]

(c)to a claimant who is engaged in work experience whilst participating in—

(i)the New Deal for Lone Parents; or

(ii)a scheme which has been approved by the Secretary of State as supporting the objectives of the New Deal for Lone ParentsF80...[F81; or

(d)to a claimant who is participating in a work placement approved by the Secretary of State (or a person providing services to the Secretary of State) before the placement starts.]

[F81(6AA) In paragraph (6A)(d) “work placement” means practical work experience which is not undertaken in expectation of payment.]

F82(6B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F82(6C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

(7) Where a claimant is treated as possessing any income under any of [F83paragraphs (1) to (4A)] 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 [F84the [F85starting rate] or, as the case may be, the [F85starting rate] and the basic rate of tax] in the year of assessment less only the [F86personal allowance] to which the claimant is entitled under [F87section 257(1) of the Income and Corporation Taxes Act 1988] ([F86personal allowance]) 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, [F88the earnings to which the [F85starting rate] F89... of tax is to be applied and] the amount of the [F86personal allowance] deductible under this paragraph shall be calculated on a pro rata basis;

[F90(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 [F91in respect of a pay period] by way of a contribution towards an occupational or personal pension scheme.

[F92(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.]

[F93(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

F2Reg. 42(2)(d) substituted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Child Benefit, Child Support and Social Security (Miscellaneous Amendments) Regulations 1996 (S.I. 1996/1803), regs. 1(1)(b), 37(a)

F3Reg. 42(2)(d) omitted (for specified purposes and with effect in accordance with reg. 1(2)-(5) of the amending S.I.) by virtue of The Social Security (Working Tax Credit and Child Tax Credit) (Consequential Amendments) Regulations 2003 (S.I. 2003/455), Sch. 1 para. 10(a)

F4Words in reg. 42(2)(e) substituted (for specified purposes and with effect in accordance with reg. 1(5)(a) of the amending S.I.) by The Social Security (Working Tax Credit and Child Tax Credit) (Consequential Amendments) Regulations 2003 (S.I. 2003/455), Sch. 1 para. 10(b)

F5Words in reg. 42(2)(f) substituted (for specified purposes and with effect in accordance with reg. 1(5)(a) of the amending S.I.) by The Social Security (Working Tax Credit and Child Tax Credit) (Consequential Amendments) Regulations 2003 (S.I. 2003/455), Sch. 1 para. 10(c)

F12Reg. 42(2)(j) and word inserted (coming into force in accordance with reg. 1(2)(3) of the amending S.I.) by The Social Security (Miscellaneous Amendments) Regulations 1998 (S.I. 1998/563), regs. 1(2), 6(1)(2)(e)

F27Reg. 42(2D) inserted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Child Benefit, Child Support and Social Security (Miscellaneous Amendments) Regulations 1996 (S.I. 1996/1803), regs. 1(1)(b), 37(b)

F28Reg. 42(2D) omitted (for specified purposes and with effect in accordance with reg. 1(2)-(5) of the amending S.I.) by virtue of The Social Security (Working Tax Credit and Child Tax Credit) (Consequential Amendments) Regulations 2003 (S.I. 2003/455), Sch. 1 para. 10(d)

F29Words in reg. 42(3)(b) substituted (coming into force in accordance with reg. 1(3) of the amending S.I.) by The Social Security (Miscellaneous Amendments) (No. 3) Regulations 2001 (S.I. 2001/859), regs. 1(3), 3(2)

F33Words 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)

F34Words 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)

F38Words in reg. 42(4)(a) substituted (for specified purposes and with effect in accordance with reg. 1(2)-(5) of the amending S.I.) by The Social Security (Working Tax Credit and Child Tax Credit) (Consequential Amendments) Regulations 2003 (S.I. 2003/455), Sch. 1 para. 10(e)(i)

F44Words in reg. 42(4)(a)(i) substituted (for specified purposes and with effect in accordance with reg. 1(2)-(5) of the amending S.I.) by The Social Security (Working Tax Credit and Child Tax Credit) (Consequential Amendments) Regulations 2003 (S.I. 2003/455), Sch. 1 para. 10(e)(ii)

F47Words in reg. 42(4)(a)(ia) substituted (for specified purposes and with effect in accordance with reg. 1(2)-(5) of the amending S.I.) by The Social Security (Working Tax Credit and Child Tax Credit) (Consequential Amendments) Regulations 2003 (S.I. 2003/455), Sch. 1 para. 10(e)(iii)

F48Words in reg. 42(4)(a)(ii) substituted (for specified purposes and with effect in accordance with reg. 1(2)-(5) of the amending S.I.) by The Social Security (Working Tax Credit and Child Tax Credit) (Consequential Amendments) Regulations 2003 (S.I. 2003/455), Sch. 1 para. 10(e)(iv)

F50Word 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)

F51Words 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))

F52Words 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)

F54Words 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

F57Reg. 42(4)(b) substituted (for specified purposes and with effect in accordance with reg. 1(2)-(5) of the amending S.I.) by The Social Security (Working Tax Credit and Child Tax Credit) (Consequential Amendments) Regulations 2003 (S.I. 2003/455), Sch. 1 para. 10(f)

F65Words in reg. 42(4ZA)(d)(iii) substituted (for specified purposes and with effect in accordance with reg. 1(2)-(5) of the amending S.I.) by The Social Security (Working Tax Credit and Child Tax Credit) (Consequential Amendments) Regulations 2003 (S.I. 2003/455), Sch. 1 para. 10(g)

F66Reg. 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)

F68Words in reg. 42(4A) substituted (for specified purposes and with effect in accordance with reg. 1(2)-(5) of the amending S.I.) by The Social Security (Working Tax Credit and Child Tax Credit) (Consequential Amendments) Regulations 2003 (S.I. 2003/455), Sch. 1 para. 10(h)

F83Words in reg. 42(7) substituted (coming into force in accordance with reg. 1(2)(3) of the amending S.I.) by The Social Security (Miscellaneous Amendments) Regulations 1998 (S.I. 1998/563), regs. 1(2), 13(1)(b)

F84Words 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)

F88Words 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)

F89Words 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

F90Reg. 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)

F91Words 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

I1Reg. 42 in force at 11.4.1988, see reg. 1