SECTION 5Other income
Notional income
41.—(1) A claimant shall be treated as possessing—
(a)subject to paragraph (2), the amount of any retirement pension income—
(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.
(2) Paragraph (1)(a) shall not apply to the following where entitlement has been deferred—
(a)a Category A or Category B retirement pension payable under sections 43 to 55 of the Act;
(b)a shared additional pension payable under section 55A of the Act F1; and
(c)graduated retirement benefit payable under sections 36 or 37 of the National Insurance Act 1965 F2.
(3) For the purposes of paragraph (2), entitlement has been deferred—
(a)in the case of a Category A or Category B pension, in the circumstances specified in section 55(3) of the Act;
(b)in the case of a shared additional pension, in the circumstances specified in section 55C(3) of the Act;
(c)in the case of graduated retirement benefit, in the circumstances specified in section 36(4) and (4A) of the National Insurance Act 1965 F3.
(4) Where a person, aged not less than 60, is a person entitled to money purchase benefits under an occupational pension scheme or a personal pension scheme, or is a party to, or a person deriving entitlement to a pension under, a retirement annuity contract, and—
(a)he fails to purchase an annuity with the funds available in that scheme where–—
(i)he defers, in whole or in part, the payment of any income which would have been payable to him by his pension fund holder;
(ii)he 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; or
(b)in the case of a retirement annuity contract, he fails to purchase an annuity with the funds available under that contract,
the amount of any income foregone shall be treated as possessed by him, but only from the date on which it could be expected to be acquired were an application for it to be made.
(5) The amount of any income foregone in a case to which either head (i) or (ii) of paragraph (4)(a) applies shall be the maximum amount of income which may be withdrawn from the fund and shall be determined by the relevant authority which shall take account of information provided by the pension fund holder in accordance with regulation 67(6) (evidence and information).
(6) The amount of any income foregone in a case to which either head (iii) of paragraph (4)(a) or paragraph (4)(b) applies shall be the income that the claimant could have received without purchasing an annuity had the funds held under the relevant scheme or retirement annuity contract been held under a personal pension scheme or occupational pension scheme where income withdrawal was available and shall be determined in the manner specified in paragraph (5).
(7) In paragraph (4), “money purchase benefits” has the meaning it has in the Pension Schemes Act 1993 F4.
(8) A person shall be treated as possessing income of which he has deprived himself for the purpose of securing entitlement to housing benefit or increasing the amount of that benefit.
(9) Where a claimant is in receipt of any benefit (other than housing benefit) under the benefit Acts and the rate of that benefit is altered with effect from a date on or after 1st April in any year but not more than 14 days thereafter, the relevant authority shall treat the claimant as possessing such benefit at the altered rate—
(a)in a case in which the claimant's weekly amount of eligible rent falls to be calculated in accordance with regulation 61(2)(b) [F5or (c)] (calculation of weekly amounts), from 1st April in that year;
(b)in any other case, from the first Monday in April in that year,
to the date on which the altered rate is to take effect.
(10) In the case of a claimant who has, or whose partner has, an award of state pension credit comprising only the savings credit, where a relevant authority treats the claimant as possessing any benefit (other than housing benefit) at the altered rate in accordance with paragraph (9), that authority shall—
(a)determine the income and capital of that claimant in accordance with regulation 27(1) (calculation of claimant's income in savings credit only cases) where the calculation or estimate of that income and capital is altered with effect from a date on or after 1st April in any year but not more than 14 days thereafter; and
(b)treat that claimant as possessing such income and capital at the altered rate by reference to the period referred to in paragraph (9)(a) or (b), as the case may be.
Textual Amendments
F1Section 55A was inserted by the Welfare Reform and Pensions Act 1999 (c. 30), Schedule 6, paragraph 3.
F3Section 36(4) is to be replaced by a new section 36(4) and (4A) by S.I. 2005/454 as from 6th April 2005.
F4 1993 c. 48; see section 181(1) of that Act.
F5Words in reg. 41(9)(a) inserted by SI 2005/2502 reg. 2(7) (as amended) (3.4.2006) by The Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006 (S.I. 2006/217), reg. 1(1), Sch. 2 para. 27(7) (with regs. 2, 3, Sch. 3, Sch. 4)
Income paid to third parties
42.—(1) Any payment of income, other than a payment specified in paragraph (2), to a third party in respect of the claimant shall be treated as possessed by the claimant.
(2) Paragraph (1) shall not apply in respect of a payment of income made under an occupational pension scheme or in respect of a pension or other periodical payment made under a personal pension scheme where—
(a)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;
(b)the payment is made to the trustee in bankruptcy or any other person acting on behalf of the creditors; and
(c)the person referred to in sub-paragraph (a) and his partner does not possess, or is not treated as possessing, any other income apart from that payment.
Textual Amendments