94.—(1) 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 97 (calculation of weekly amount of income).
(2) Subject to the following provisions of this regulation, the period over which a payment is to be taken into account shall be—
[F1(a)where the payment is monthly, a period equal to the number of weeks from the date on which the payment is treated as paid to the date immediately before the date on which the next monthly payment would have been so treated as paid whether or not the next monthly payment is actually paid;
(aa)where the payment is in respect of a period which is not monthly, a period equal to the length of the period for which payment is made;]
(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 less any amount paid by way of tax on that income which is disregarded under paragraph 1 of Schedule 7 (sums to be disregarded in the calculation of income other than earnings), by the amount of jobseeker’s allowance 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 6 [F2and Schedule 6A] (sums to be disregarded in the calculation of earnings) or, as the case may be, any paragraph of Schedule 7 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 96.
[F3(2A) The period over which a Career Development Loan, which is paid pursuant to section 2 of the Employment and Training Act 1973, shall be taken into account shall be the period of education and training intended to be supported by that loan.
(2B) Where grant income as defined in Chapter IX of this Part has been paid to a person who ceases to be a full-time student before the end of the period in respect of which that income is payable and, as a consequence, the whole or part of that income falls to be repaid by that person, that income shall be taken into account over the period beginning on the date on which that income is treated as paid under regulation 96 and ending—
(a)on the date on which repayment is made in full; or
[F4(aa)where the grant is paid in instalments, on the day before the next instalment would have been paid had the claimant remained a student; or]
(b)on the last date of the academic term or vacation during which that person ceased to be a full-time student,
whichever shall first occur.]
[F5(2C) Earnings derived by a claimant as a member of any territorial or reserve force prescribed in Part 1 of Schedule 6 to the Contributions Regulations in respect of a period of annual continuous training for a maximum of 15 days in any calendar year, whether paid to the claimant alone or together with other earnings derived from the same source, are to be taken into account—
(a)in the case of a period of training exceeding 14 days, over a period of 14 days, F6...or
(b)in any other case, over a period which is equal to the duration of the training period.
(2D) The period referred to in paragraph (2C) over which earnings are to be taken into account shall begin on the date on which they are treated as paid under regulation 96.]
(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 96 (date on which income is treated as paid).
(4) In a case to which paragraph (3) applies, earnings under regulation 98 (earnings of employed earners) shall be taken into account in the following order of priority—
(a)earnings normally derived from the employment;
(b)any compensation payment;
(c)any holiday pay.
(5) Where earnings to which regulation 98(1)(b) or (c) (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.
(6) Subject to paragraph (7), the period over which a compensation payment is to be taken into account shall be the period beginning on the date on which the payment is treated as paid under regulation 96 (date on which income is treated as paid) and ending—
(a)subject to sub-paragraph (b), where the person who made the payment represents that it, or part of it, was paid in lieu of notice of termination of employment or on account of the early termination of a contract of employment for a term certain, on the expiry date;
(b)in a case where the person who made the payment represents that it, or part of it, was paid in lieu of consultation under section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 F7, on the later of—
(i)the date on which the consultation period under that section would have ended;
(ii)in a case where sub-paragraph (a) also applies, the expiry date; or
(iii)the standard date;
(c)in any other case, on the standard date.
(7) The maximum length of time over which a compensation payment may be taken into account under paragraph (6) is 52 weeks from the date on which the payment is treated as paid under regulation 96.
(8) In this regulation–
(a)“compensation payment" means any payment to which paragraph (3) of regulation 98 (earnings of employed earners) applies;
(b)“the expiry date" means in relation to the termination of a person’s employment—
(i)the date on which any period of notice applicable to the person was due to expire, or would have expired had it not been waived; and for this purpose “period of notice" means the period of 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; or
(ii)subject to paragraph (9), where the person who made the payment represents that the period in respect of which that payment is made is longer than the period of notice referred to in head (i) above, the date on which that longer period is due to expire; or
(iii)where the person had a contract of employment for a term certain, the date on which it was due to expire;
(c)“the standard date" means the earlier of–
(i)the expiry date; and
(ii)the last day of the period determined by dividing the amount of the compensation payment by the maximum weekly amount which, on the date on which the payment is treated as paid under regulation 96, is specified in [F8section 227(1) of the Employment Rights Act 1996], and treating the result (less any fraction of a whole number) as a number of weeks.
(9) For the purposes of paragraph (8), if it appears to [F9the Secretary of State] in a case to which sub-paragraph (b)(ii) of that paragraph applies that, having regard to the amount of the compensation payment and the level of remuneration normally received by the claimant when he was engaged in the employment in respect of which the compensation payment was made, it is unreasonable to take the payment into account until the date specified in that sub-paragraph, the expiry date shall be the date specified in paragraph (8)(b)(i).
(10) 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
F1Reg. 94(2)(a)(aa) substituted for reg. 94(2)(a) (14.4.2008) by The Social Security (Miscellaneous Amendments) Regulations 2008 (S.I. 2008/698), regs. 1(1), 4(10)
F2Words in reg. 94(2)(b) inserted (19.3.2001) by The Jobseeker’s Allowance (Joint Claims) Regulations 2000 (S.I. 2000/1978), reg. 1(1), Sch. 2 para. 39
F3Reg. 94(2A)(2B) inserted (for specified purposes and with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits and Jobseeker’s Allowance (Miscellaneous Amendments) Regulations 1997 (S.I. 1997/65), reg. 1(1)(2), 5(2)
F4Reg. 94(2B)(aa) 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, 12
F5Reg. 94(2C)(2D) inserted (30.7.2012) by The Jobseeker’s Allowance (Members of the Reserve Forces) Regulations 2012 (S.I. 2012/1616), regs. 1(2), 2(6)
F6Words in reg. 94(2C)(a) omitted (5.11.2012) by virtue of The Social Security (Miscellaneous Amendments) (No. 2) Regulations 2012 (S.I. 2012/2575), regs. 1(2), 3(5)
F71992 c.52. Section 188 was amended by the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 1995 (S.I. 1995/2587).
F8Words in reg. 94(8)(c)(ii) substituted (1.10.2007) by The Social Security (Miscellaneous Amendments) (No. 5) Regulations 2007 (S.I. 2007/2618), regs. 1(1), 8(7)
F9Words in reg. 94(9) substituted (18.10.1999) by The Social Security Act 1998 (Commencement No. 11, and Savings and Consequential and Transitional Provisions) Order 1999 (S.I. 1999/2860), art. 3(1), Sch. 12 para. 2