39.—(1) The categories of work referred to in regulation 37(2)(f) are—
(a)work for which the total earnings in any week does not exceed £20;
(b)work for which the total earnings in any week does not exceed 16 multiplied by the National Minimum Wage, subject to paragraph (4), and which—
(i)is part of the claimant's treatment programme and is done under medical supervision while the claimant is an in-patient, or is regularly attending as an out-patient, of a hospital or similar institution; or
(ii)is supervised by a person employed by a public or local authority or by a voluntary organisation or community interest company engaged in the provision or procurement of work for persons who have disabilities;
(c)work which is done for less than 16 hours a week, for which total earnings in any week does not exceed 16 multiplied by the National Minimum Wage, subject to paragraph (4)F1...;
(d)work done in the course of receiving assistance in pursuing self-employed earner's employment whilst participating in a programme provided, or in other arrangements made, under section 2 of the Employment and Training Act 1973 (functions of the Secretary of State) or section 2 of the Enterprise and New Towns (Scotland) Act 1990 (functions in relation to training for employment etc);
(e)work done where the claimant receives no payment of earnings and where the claimant is—
(i)engaged by a charity or voluntary organisation; or
(ii)a volunteer,
and where the Secretary of State is satisfied in either of those cases that it is reasonable for the claimant to do the work free of charge;
(f)work done in the course of participating in a work placement approved in writing by the Secretary of State before the placement starts.
(2) The number of hours for which a claimant is engaged in work is to be determined—
(a)where no recognisable cycle has been established in respect of a claimant's work, by reference to the number of hours or, where those hours are likely to fluctuate, the average of the hours, which the claimant is expected to work in a week;
(b)where the number of hours for which the claimant is engaged fluctuate, by reference to the average of hours worked over—
(i)if there is a recognisable cycle of work, the period of one complete cycle (including, where the cycle involves periods in which the claimant does no work, those periods but disregarding any other absences);
(ii)in any other case, the period of five weeks immediately before the date of claim or the date on which a superseding decision is made under section 10 of the Social Security Act 1998 (decisions superseding earlier decisions) M1, or such other length of time as may, in the particular case, enable the claimant's average hours of work to be determined more accurately.
(3) For the purposes of determining the number of hours for which a claimant is engaged in work, that number is to include any time allowed to that claimant by the claimant's employer for a meal or for refreshment, but only where that claimant is, or expects to be, paid earnings in respect of that time.
(4) Where the amount determined by the calculation in paragraph (1)(b) or (c) would, but for this paragraph, include an amount of—
(a)less than 50p, that amount is to be rounded up to the nearest 50p; or
(b)less than £1 but more than 50p, that amount is to be rounded up to the nearest £1.
(5) Part 10 applies for the purposes of calculating any income which consists of earnings under this regulation.
(6) In this regulation—
F2...
“volunteer” means a person who is engaged in voluntary work otherwise than for a relative, where the only payment received or due to be paid to the person by virtue of being so engaged is in respect of any expenses reasonably incurred by the person in connection with that work;
F2...
“work placement” means practical work experience with an employer, which is neither paid nor undertaken in expectation of payment.
F3(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Textual Amendments
F1Words in reg. 39(1)(c) omitted (3.4.2017) by virtue of The Employment and Support Allowance (Exempt Work Hardship Amounts) (Amendment) Regulations 2017 (S.I. 2017/205), regs. 1, 4(a)
F2Words in reg. 39(6) omitted (3.4.2017) by virtue of The Employment and Support Allowance (Exempt Work Hardship Amounts) (Amendment) Regulations 2017 (S.I. 2017/205), regs. 1, 4(b)
F3Reg. 39(7) omitted (3.4.2017) by virtue of The Employment and Support Allowance (Exempt Work Hardship Amounts) (Amendment) Regulations 2017 (S.I. 2017/205), regs. 1, 4(c)
Marginal Citations
M11998 c.14. Section 10 was amended by paragraph 23 of Schedule 7 to the Social Security Contributions (Transfer of Functions, etc) Act 1999 (c.2) and paragraph 4 of Schedule 12, and Schedule 14, to the Welfare Reform Act 2012 and S.I. 2008/2833.