The Employment and Support Allowance (Consequential Provisions) Regulations 2008

Amendment of regulation 38

72.  In regulation 38 (diminishing notional capital rule)—

(a) in paragraph (3) after sub-paragraph (d) add—

“(e) where the claimant has also claimed an employment and support allowance, the amount of an income-related employment and support allowance to which he would have been entitled in respect of the benefit week to which paragraph (2) refers but for the application of regulation 115 of the Employment and Support Allowance Regulations (notional capital).”;

(b) in paragraph (4) after sub-paragraph (d) add—

“(e) if the claimant would, but for regulation 115 of the Employment and Support Allowance Regulations, have been entitled to an income-related employment and support allowance in respect of the benefit week, within the meaning of regulation 2(1) of those Regulations (interpretation), which includes the last day of the relevant week, the amount to which he would have been entitled and, for the purposes of this sub-paragraph, if the amount is in respect of a part-week, that amount must be determined by dividing the amount of the income-related employment and support allowance to which he would have been so entitled by the number equal to the number of days in that part-week and multiplying the quotient so obtained by 7.”; and

(c) in paragraph (8)(b)—

(i) for “and (d)” substitute “, (d) and (e)”; and

(ii) in paragraph (i) after “state pension credit” insert “, an income-related employment and support allowance”.