PART VIII INCOME AND CAPITAL

Chapter V Other Income

Notional income

105.—(1) A claimant shall be treated as possessing income 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.

(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)[F2child benefit to which paragraph (2A) refers;]]

(d)[F3working tax credit or child tax credit];

(e)a jobseeker’s allowance;

F4(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(g)a personal pension scheme [F5[F6, occupational pension scheme or a payment made by the Board of the Pension Protection Fund]] where the claimant is aged under 60;[F7or ]

[F8(h)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);

(ha)any sum to which paragraph 43(a) of Schedule 8 refers; or]

(i)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 it could be expected to be acquired were an application made.

[F9(2A) [F10This 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.]]

[F11(2B) 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 [F12a personal pension scheme 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.]

[F13(3) 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.

(3A) Where paragraph (3) 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.]

(4) The amount of any income foregone in a case [F14where paragraph (3)(c)(i) or (ii)] applies shall be the maximum amount of income which may be withdrawn from the fund and shall be determined by [F15the Secretary 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 1987F16.

(5) The amount of any income foregone in a case [F17where paragraph (3)(c)(iii)] applies shall be the income that the claimant could have received without purchasing an annuity had the fund held under the relevant [F18occupational or personal pension scheme been held under a scheme] where income withdrawal was available and shall be determined in the manner specified in paragraph (4).

[F19(5A) In paragraph (3), “money purchase benefits” has the meaning it has in the Pension Schemes Act 1993.]

(6) Subject to paragraph (7), any income which is due to be paid to the claimant but has not been paid to him, shall be treated as possessed by the claimant.

(7) Paragraph (6) shall not apply to–

(a)any amount to which paragraph (8) or (9) applies;

(b)a payment to which section 74(2) or (3) of the Administration Act applies (abatement of prescribed payments from public funds which are not made before the prescribed date, and abatement from prescribed benefits where maintenance not paid); and

(c)a payment from a discretionary trust, or a trust derived from a payment made in consequence of a personal injury.

[F20(d)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.]

(8) 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 payment due to an insufficiency of resources.

(9) 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 liabilities.

(10) [F21Any payment of income, other than a payment of income specified in paragraph (10A)—]

(a)to a third party in respect of a single claimant or in respect of a single claimant or [F22in respect of a member of the family] [F22his partner] shall be treated—

(i)in a case where that payment is derived from a payment of any benefit under the Act or under the Benefits Act, [F23a payment from the Armed Forces and Reserve Forces Compensation Scheme,] a war disablement pension or war widows pension [F24or war widower’s pension], as possessed by that single claimant, if it would normally be paid to him, or as possessed [F25by that member of the family, if it would normally be paid to that member] [F25by his partner, if it would normally be paid to his partner];

[F26(ia)in a case where that payment is a payment of an occupational pension [F27, 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 [F28that member] [F28the claimant’s partner];]

(ii)in any other case, as possessed by that single claimant [F29or by that member of the family] [F29or his partner] to the extent that it is used for the food, ordinary clothing or footwear, household fuel, rent for which housing benefit is payable, or any housing costs to the extent that they are met under regulation 83(f)[F30, 84(1)(g), 86A(d) or 86B(e)], of that single claimant or, as the case may be, [F29of any member of the family] [F29of his partner], or is used for any council tax or water charges for which that claimant or [F29member is liable] [F29partner is liable];

(b)[F31to 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;]

[F31to 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 who is, or would be, prevented from being entitled to a jobseeker’s allowance by section 14 (trade disputes), this paragraph shall not apply to any payment in kind [F32to the third party].

[F33(10A) Paragraph (10) 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 Funds;

(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);

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

[F34(iia)in the Intensive Activity Period for 50 plus or 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).]

[F35(d)under an occupational pension scheme [F36, 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 F6;

(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 [F37any member of his family] [F37his partner (if any)] does not possess, or is not treated as possessing, any other income apart from that payment;]

(11) Where the claimant [F38resides 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 [F39or a member of his family in that home shall be treated as possessed by the claimant or by that member of his family] [F39or his partner in that home shall be treated as possessed by the claimant or his partner].

[F40(11A) 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.]

(12) Where a claimant’s earnings are not ascertainable at the time of the determination of the claim or of any [F41review or supersession] [F42the 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.

(13) [F43Subject to paragraph (13A),] 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,

[F44the Secretary 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 service; F45...

[F46(13A) Paragraph (13) shall not apply–

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

(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)[F47, other than where the service is performed in connection with the claimant’s participation in the Intensive Activity Period for 50 plus or in the Intensive Activity Period specified in regulation 75(1)(a)(iv)]; or

(ii)the claimant’s or the claimant’s partner’s participation in an employment or training programme as defined in regulation 19(3) 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.]

(14) Where a claimant is treated as possessing any income under any of paragraphs (1) to (11) 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.

(15) Where a claimant is treated as possessing any earnings under paragraphs (12) or (13) 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 (4) of regulation 99 (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 the 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 [F48personal allowance] to which the claimant is entitled under [F49section 257(1)] of the Income and Corporation Taxes Act 1988 F50 ([F48personal 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, the earnings to which the lower rate of tax is to be applied and the amount of the [F48personal allowance] deductible under this paragraph shall be calculated on a pro rata basis;

(b)where the weekly amount of those earnings equals or exceeds the lower earnings limit, an amount representing primary Class 1 contributions under the 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 in respect of a pay period by way of a contribution towards an occupational or personal pension scheme.

(16) In this regulation–

“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;

“pension fund holder" means with respect to a personal pension scheme [F51or an occupational pension scheme] the trustees, managers or scheme administrators, as the case may be, of the scheme concerned;

“resources" has the same meaning as in section 181 of the Pension Schemes Act 1993F52.

Textual Amendments

F1Reg. 105(2)(c) substituted (with effect in accordance with reg. 1(3) of the amending S.I.) by The Child Benefit, Child Support and Social Security (Miscellaneous Amendments) Regulations 1996 (S.I. 1996/1803), regs. 1(b), 42(a)

F2Reg. 105(2)(c) 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. 10(a)

F3Words in reg. 105(2)(d) substituted (for specified purposes and with effect in accordance with reg. 1(9) 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. 10(b)

F7Word added in reg. 105(2)(g) (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

F9Reg. 105(2A) inserted (with effect in accordance with reg. 1(3) of the amending S.I.) by The Child Benefit, Child Support and Social Security (Miscellaneous Amendments) Regulations 1996 (S.I. 1996/1803), regs. 1(b), 42(b)

F10Reg. 105(2A) 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. 10(a)

F16S.I. 1987/1968; paragraph (5) was added by S.I.1995/2303.

F22Words in reg. 105(10)(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. 10(c)(i)

F25Words in reg. 105(10)(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. 10(c)(ii)

F28Words in reg. 105(10)(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. 10(c)(iii)

F29Words in reg. 105(10)(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. 10(c)(iv)

F31Reg. 105(10)(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. 10(d)

F37Words in reg. 105(10A)(d)(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. 10(e)

F39Words in reg. 105(11) 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. 10(f)

F501988 c.1; sections 257 to 257F were substituted for section 257 by section 33 of the Finance Act 1988 (c.39); section 259 was amended by sections 30 and 35 of the Finance Act 1988, section 20 of the Finance (No.2) Act 1992 (c.48), and section 77 and Schedule 8, paragraph 6 of the Finance Act 1994 (c.9).

Modifications etc. (not altering text)

C1Reg. 105 modified (temp. from 28.11.2000 until 27.11.2001) by The Social Security (New Deal Pilot) Regulations 2000 (S.I. 2000/3134), regs. 1(1)(b), 14(1)(c)

C2Reg. 105(10A)(c) modified (temp. from 28.11.2000 until 27.11.2001) by The Social Security (New Deal Pilot) Regulations 2000 (S.I. 2000/3134), regs. 1(1)(b), 14(1)(a)

C3Reg. 105(13) modified (temp. from 28.11.2000 until 27.11.2001) by The Social Security (New Deal Pilot) Regulations 2000 (S.I. 2000/3134), regs. 1(1)(b), 14(1)(b)