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PART VIII INCOME AND CAPITAL

Chapter VI Capital

Capital limit

[F1107.  For the purposes of section 13(1) and (2A) (no entitlement to an income-based jobseeker's allowance if capital exceeds a prescribed amount), the prescribed amount is £16,000.]

Textual Amendments

F1Reg. 107 substituted (with effect in accordance with reg. 1(6) of the amending S.I.) by The Social Security (Miscellaneous Amendments) (No. 2) Regulations 2005 (S.I. 2005/2465), regs. 1(6)(b), 3(4)

Calculation of capital

108.—(1) Subject to paragraph (2), the capital of a claimant to be taken into account shall be the whole of his capital calculated in accordance with this Part and any income treated as capital under regulation 110.

(2) There shall be disregarded from the calculation of a claimant’s capital under paragraph (1) any capital, where applicable, specified in Schedule 8.

Disregard of capital of child or young person

109.  [F2The 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.]

Textual Amendments

F2Reg. 109 omitted (for specified purposes and with effect in accordance with reg. 1(6)(7)(8) 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. 2 para. 11

Income treated as capital

110.—(1) Any bounty derived from employment to which paragraph 9 of Schedule 6 applies and paid at intervals of at least one year shall be treated as capital.

(2) Except in the case of an amount to which section 15(2)(c)(i) (refund of tax in trade dispute cases) 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 98(1)(c) (earnings of employed earners) shall be treated as capital.

(4) Except any income derived from capital disregarded under paragraphs 1, 2, 4 to 8, 11[F3, 17, 42 or 43] of Schedule 8, 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.

(6) Paragraph (5) shall not apply to a person who is, or would be, prevented from being entitled to a jobseeker’s allowance by section 14 (trade disputes).

(7) Any payment under section 30 of the Prison Act 1952 F4 (payments for discharged prisoners) or allowance under section 17 of the Prisons (Scotland) Act 1989 F5 (allowances to prisoners on discharge) shall be treated as capital.

(8) [F6Any payment made by a local authority which represents arrears of payments under paragraph 15 of Schedule 1 to the Children Act 1989 F7 (power of a local authority to make contributions to a person with whom a child lives as a result of a residence order) or under section 50 of the Children Act 1975 F8 (contributions to a custodian towards the cost of accommodation and maintenance of a child) [F9or any payment, made by an authority, as defined in Article 2 of the Children Order, which represents arrears of payments under Article 15 of, and paragraph 17 of Schedule 1 to, that Order (contribution by an authority to child’s maintenance),] shall be treated as capital.]

(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.

(10) This paragraph applies to a payment–

(a)which is made to a person who is, or would be, prevented from being entitled to a jobseeker’s allowance by section 14 (trade disputes);

(b)[F10to which regulation 106(2) (modifications in respect of children and young persons) applies; or]

(c)which is made under [F11or by] the Macfarlane Trust, the Macfarlane (Special Payments) Trust, the Macfarlane (Special Payments) (No.2) Trust, the Fund, the Eileen Trust [F12, MFET Limited] or the Independent Living [F13Fund (2006)].

[F14(11) Any arrears of subsistence allowance which are paid to a claimant as a lump sum shall be treated as capital.]

Textual Amendments

F3Words in reg. 110(4) substituted (for specified purposes and with effect in accordance with reg. 1(4) of the amending S.I.) by The Social Security (Miscellaneous Amendments) (No. 4) Regulations 2006 (S.I. 2006/2378), reg. 13(6)

F41952 c.52; section 30 was substituted by section 66(3) of the Criminal Justice Act 1967 (c.80).

F6Reg. 110(8) omitted (for specified purposes and with effect in accordance with reg. 1(6)(7)(8) 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. 2 para. 12

F9Words in reg. 110(8) inserted (coming into force in accordance with reg. 1(2)(3)(4)(5)(6) of the amending S.I.) by The Social Security (Miscellaneous Amendments) Regulations 1998 (S.I. 1998/563), regs. 1, 14(2)

F10Reg. 110(10)(b) omitted (for specified purposes and with effect in accordance with reg. 1(6)(7)(8) 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. 2 para. 12

[F15 Calculation of capital in the United Kingdom

111.  Capital which a claimant possesses in the United Kingdom shall be calculated at its current market or surrender value less—

(a)where there would be expenses attributable to the sale, 10 per cent; and

(b)the amount of any incumbrance secured on it.]

Textual Amendments

Calculation of capital outside the United Kingdom

112.  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.

Notional capital

113.—(1) A claimant shall be treated as possessing capital of which he has deprived himself for the purpose of securing entitlement to a jobseeker’s allowance or increasing the amount of that allowance, or for the purpose of securing entitlement to or increasing the amount of income support, except—

(a)where that capital is derived from a payment made in consequence of a personal injury and is placed on trust for the benefit of the claimant; or

(b)to the extent that the capital he is treated as possessing is reduced in accordance with regulation 114 (diminishing notional capital rule); [F16or]

[F17(c)any sum to which paragraph 42(2)(a) of Schedule 8 (capital to be disregarded) applies which is administered in the way referred to in paragraph 42(1)(a); or

(d)any sum to which paragraph 43(a) of Schedule 8 refers.]

(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)any loan which would be obtainable only if secured against capital disregarded under Schedule 8; or

(d)a personal pension scheme; [F18or]

[F19(da)an occupational pension scheme [F20or a payment made by the Board of the Pension Protection Fund] where the claimant [F21has not attained the qualifying age for state pension credit]; or]

[F22(e)any sum to which paragraph 42(2)(a) of Schedule 8 (capital to be disregarded) applies which is administered in the way referred to in paragraph 42(1)(a); or

(f)any sum to which paragraph 43(a) of Schedule 8 refers,]

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 it could be expected to be acquired were an application made.

(3) [F23Any payment of capital, other than a payment of capital specified in paragraph (3A)] made—

(a)to a third party in respect of a single claimant or [F24in respect of a member of the family] [F24his partner] shall be treated—

[F25(ia)in a case where that payment is a payment of an occupational pension[F26, 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 [F27that member] [F27the claimant’s partner];]

(i)in a case where that payment is derived from a payment of any benefit under the [F28benefit Acts, a payment from the Armed Forces and Reserve Forces Compensation Scheme, a war disablement pension, war widow’s pension or war widower’s pension or a pension payable to a person as a widow, widower or surviving civil partner under 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 would normally be paid to him, or as possessed [F29by that member of the family, if it would normally be paid to that member] [F29by his partner, if it would normally be paid to his partner];

(ii)in any other case, as possessed by that single claimant [F30or by that member of the family] [F30or his partner] to the extent that it is used for the food, ordinary clothing or footwear, household fuel, rent for which housing benefit [F31is payable] or any housing costs to the extent that they are met under regulation 83(f)[F32, 84(1)(g), 86A(d) or 86B(e)]F33..., of that single claimant or, as the case may be, [F30of any member of the family] [F30of his partner], or is used for any council tax or water charges for which that claimant or [F30member is liable] [F30partner is liable];

(b)[F34to 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 by or on behalf of any member of the family.]

[F34to 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 extend that it is kept or used by him or used by or on behalf of his partner.]

[F35(3A) Paragraph (3) shall not apply in respect of a payment of capital made—

(a)under [F36or by] the Macfarlane Trust, the Macfarlane (Special Payments) Trust, the Macfarlane (Special Payments) (No.2) Trust, the Fund, the Eileen Trust [F37, MFET Limited] [F38, the Independent Living [F39Fund (2006)][F40, the Skipton Fund or the London Bombings Relief Charitable Fund]]; or

(b)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);

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

[F41(iia)F42... in the Intensive Activity Period specified in regulation 75(1)(a)(iv); or]

(iii)in a qualifying course within the meaning specified in regulation 17A(7)][F43; or

(iv)in the Flexible New Deal;]

[F44(bb)in respect of a person's participation in the Mandatory Work Activity Scheme;]

[F45(bc)in respect of a claimant's participation in the Employment, Skills and Enterprise Scheme;]

[F46(c)under an occupational pension scheme[F47, 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 [F48any member of his family] [F48his partner (if any)] does not possess, or is not treated as possessing, any other income apart from that payment.]

(4) Where a claimant stands in relation to a company in a position analogous to that of a sole owner or a 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 108 (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 any capital under any of paragraphs (1) to (4) the foregoing provisions of this Chapter shall apply for the purposes of calculating the amount of that capital as if it were actual capital which he does possess.

(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.

(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

F16Reg. 113(1)(c) added (with effect in accordance with reg. 1(2)(3) of the amending S.I.) by The Income-related Benefits and Jobseekers Allowance (Amendment) (No. 2) Regulations 1997 (S.I. 1997/2197), regs. 1(2), 6

F18Reg. 113(2)(e) and word added (with effect in accordance with reg. 1(2)(3) of the amending S.I.) by The Income-related Benefits and Jobseekers Allowance (Amendment) (No. 2) Regulations 1997 (S.I. 1997/2197), regs. 1(2), 6

F24Words in reg. 113(3)(a) substituted (for specified purposes and with effect in accordance with reg. 1(6)(7)(8) 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. 2 para. 13(a)(i)

F27Words in reg. 113(3)(a)(ia) substituted (for specified purposes and with effect in accordance with reg. 1(6)(7)(8) 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. 2 para. 13(a)(iii)

F29Words in reg. 113(3)(a)(i) substituted (for specified purposes and with effect in accordance with reg. 1(6)(7)(8) 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. 2 para. 13(a)(ii)

F30Words in reg. 113(3)(a)(ii) substituted (for specified purposes and with effect in accordance with reg. 1(6)(7)(8) 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. 2 para. 13(a)(iv)

F34Reg. 113(3)(b) substituted (for specified purposes and with effect in accordance with reg. 1(6)(7)(8) 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. 2 para. 13(b)

F48Words in reg. 113(3A)(c)(iii) substituted (for specified purposes and with effect in accordance with reg. 1(6)(7)(8) 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. 2 para. 13(c)

Modifications etc. (not altering text)

Diminishing notional capital rule

114.—(1) Where a claimant is treated as possessing capital under regulation 113(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 an 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 a jobseeker’s allowance; and

(b)but for regulation 113(1), he would have received an additional amount of jobseeker’s allowance 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 an income-based jobseeker’s allowance in the relevant week but for regulation 113(1), and in such a case the amount of the reduction shall be equal to the aggregate of—

(a)the amount of jobseeker’s allowance to which the claimant would have been entitled in the relevant week but for regulation 113(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 jobseeker’s allowance to which he would have been 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 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 [F49the Housing Benefit Regulations 2006] (interpretation).

(c)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 F50 (interpretation).

(4) The amount determined under paragraph (3) shall be re-determined under that paragraph if the claimant makes a further claim for a jobseeker’s allowance 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 referred to in paragraph (4) are that–

(a)a further claim is made 26 or more weeks after–

(i)the date on which the claimant made a claim for a jobseeker’s allowance in respect of which he was first treated as possessing the capital in question under regulation 113(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 a jobseeker’s allowance which resulted in the weekly amount being re-determined; or

(iii)the date on which he last ceased to be in receipt of a jobseeker’s allowance;

whichever last occurred; and

(b)the claimant would have been entitled to a jobseeker’s allowance but for regulation 113(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 purposes of this regulation–

(a)“part-week" has the same meaning as in regulation 150(3);

(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 113(1)—

(i)was first taken into account for the purposes of determining his entitlement to a jobseeker’s allowance or income support; or

(ii)was taken into account on a subsequent occasion for the purposes of determining or re-determining his entitlement to a jobseeker’s allowance or income support on that subsequent occasion and that determination or re-determination resulted in his beginning to receive, or ceasing to receive, a jobseeker’s allowance or 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 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 held

115.  Except where a claimant possesses capital which is disregarded under regulation 113(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 [F51to the whole beneficial interest therein in an equal share and the foregoing provisions of this Chapter shall apply for the purposes of calculating the amount of capital which the claimant is treated as possessing as if it were actual capital which the claimant does possess].

Textual Amendments

Calculation of tariff income from capital

116.—(1) [F52Except in a case to which paragraph F53...(1B) applies,] where the claimant’s capital calculated in accordance with this Part exceeds [F54£6,000] it shall be treated as equivalent to a weekly income of £1 for each complete £250 in excess of [F54£6,000] but not exceeding [F55£16,000].

F56(1ZA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F57(1A) In the case of a claimant to whom paragraph (1B) applies and whose capital calculated in accordance with Chapter VI of Part VIII 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) This paragraph applies where the claimant lives permanently in—

[F58(a)a care home or an independent hospital;]

[F58(b)an Abbeyfield Home;]

(c)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 [F59by reason of old age, disablement, past or present dependence on alcohol or drugs, past or present mental disorder or a terminal illness and the care is provided in the home].

F60(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(1C) For the purpose of paragraph (1B), a claimant shall be treated as living permanently in such home[F61, hospital] or accommodation where he is absent—

[F62(a)from a home[F61, hospital] or accommodation referred to in sub-paragraph (a) [F63or (b)] of paragraph (1B) for a period not exceeding 13 weeks;]

(b)from accommodation referred to in sub-paragraph (c) of paragraph (1B), but intends, with the agreement of the manager of the accommodation, to return to the accommodation in due course.]

(2) Notwithstanding [F64paragraphs (1)F65... and (1A)], 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 [F64paragraphs (1)F65... and (1A)], capital includes any income treated as capital under regulations 110 and 124 (income treated as capital and liable relative payments treated as capital).

F66(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F53Words in reg. 116(1) omitted (with effect in accordance with reg. 1(6) of the amending S.I.) by virtue of The Social Security (Miscellaneous Amendments) (No. 2) Regulations 2005 (S.I. 2005/2465), regs. 1(6)(b), 3(6)(a)(i)

F54Words in reg. 116(1) substituted (with effect in accordance with reg. 1(6) of the amending S.I.) by The Social Security (Miscellaneous Amendments) (No. 2) Regulations 2005 (S.I. 2005/2465), regs. 1(6)(b), 3(6)(a)(ii)

F55Word in reg. 116(1) substituted (with effect in accordance with reg. 1(6) of the amending S.I.) by The Social Security (Miscellaneous Amendments) (No. 2) Regulations 2005 (S.I. 2005/2465), regs. 1(6)(b), 3(6)(a)(iii)

F56Reg. 116(1ZA) omitted (with effect in accordance with reg. 1(6) of the amending S.I.) by virtue of The Social Security (Miscellaneous Amendments) (No. 2) Regulations 2005 (S.I. 2005/2465), regs. 1(6)(b), 3(6)(b)

F59Words in reg. 116(1B)(c) substituted (with effect in accordance with reg. 1(2)(3) of the amending S.I.) by The Income-related Benefits and Jobseekers Allowance (Amendment) (No. 2) Regulations 1997 (S.I. 1997/2197), regs. 1(2), 7(5)(6)(b)

F65Word in reg. 116(2)(3) omitted (with effect in accordance with reg. 1(6) of the amending S.I.) by virtue of The Social Security (Miscellaneous Amendments) (No. 2) Regulations 2005 (S.I. 2005/2465), regs. 1(6)(b), 3(6)(c)