The Disability Working Allowance (General) Regulations (Northern Ireland) 1992

Diminishing notional capital rule

38.—(1) Where a claimant is treated as possessing capital under regulation 37(1) (notional capital), the amount which he is treated as possessing—

(a) in the case of a benefit week which is subsequent to—

(i) the relevant week in respect of which the conditions set out in paragraph (2) are satisfied, or

(ii) a week which follows that relevant week and which satisfies those conditions,

shall be reduced by an amount determined under paragraph (3); and

(b) in the case of a benefit week in respect of which paragraph (1)(a) does not apply but where—

(i) that week is a week subsequent to the relevant week, and

(ii) that relevant week is a week in which the condition in paragraph (4) is satisfied,

shall be reduced by the amount determined under paragraph (4).

(2) This paragraph applies to a benefit week where the claimant satisfies the conditions that—

(a) he is entitled to disability working allowance; and

(b) but for regulation 37(1), he would have been entitled to an additional amount of disability working allowance in that benefit week.

(3) In a case to which paragraph (2) applies, the amount of the reduction for the purposes of paragraph (1)(a) shall be equal to the aggregate of—

(a) the additional amount of disability working allowance to which the claimant would have been entitled; and

(b) if the claimant would, but for regulation 43(1) of the Housing Benefit (General) Regulations (Northern Ireland) 1987(1) (notional capital), have been entitled to housing benefit or to an additional amount of housing benefit in respect of the benefit week in which the date of the last claim for disability working allowance falls, the amount (if any) which is equal to—

(i) in a case where no housing benefit is payable, the amount to which he would have been entitled, or

(ii) in any other case, the amount equal to the additional amount of housing benefit to which he would have been entitled.

(4) Subject to paragraph (5), for the purposes of paragraph (1)(b), the condition is that the claimant would have been entitled to disability working allowance in the relevant week but for regulation 37(1), and in such a case the amount of the reduction shall be equal to the aggregate of—

(a) the amount of disability working allowance to which the claimant would have been entitled in the relevant week but for regulation 37(1); and

(b) if the claimant would, but for regulation 43(1) of the Housing Benefit (General) Regulations (Northern Ireland) 1987 (notional capital), have been entitled to housing benefit or to an additional amount of housing benefit in respect of the benefit week in which the first day of the relevant week falls, the amount (if any) which is equal to—

(i) in a case where no housing benefit is payable, the amount to which he would have been entitled, or

(ii) in any other case, the amount equal to the additional amount of housing benefit to which he would have been entitled.

(5) The amount determined under paragraph (4) shall be re-determined under that paragraph if the claimant makes a further claim for disability working allowance and the conditions in paragraph (6) are satisfied, and in such a case—

(a) paragraph (4)(a) and (b) shall apply as if for “relevant week” there were substituted “relevant subsequent week”; and

(b) subject to paragraph (7), the amount as re-determined shall have effect from the first week following the relevant subsequent week in question.

(6) The conditions are that—

(a) a further claim is made 20 or more weeks after—

(i) the first day of the relevant week, or

(ii) in a case where there has been at least one re-determination in accordance with paragraph (5), the first day of the relevant subsequent week which last occurred,

whichever last occurred; and

(b) the claimant would have been entitled to disability working allowance but for regulation 37(1).

(7) The amount as re-determined pursuant to paragraph (5) shall not have effect if it is less than the amount which applied in that case immediately before the re-determination and in such a case the higher amount shall continue to have effect.

(8) For the purposes of this regulation—

(a) “benefit week” has the meaning prescribed in regulations 16 (date of entitlement under an award for the purpose of determining the day from which benefit is to be payable and effective date of change of rate) and 27 (family credit and disability working allowance) of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987(2) except where it appears in paragraphs (3)(b) and (4)(b) where it has the meaning prescribed in regulation 2(1) of the Housing Benefit (General) Regulations (Northern Ireland) 1987 (interpretation);

(b) “relevant week” means the benefit week in which the capital in question of which the claimant has deprived himself within the meaning of regulation 37(1)—

(i) was for the first time taken into account for the purpose of determining his entitlement to disability working allowance, or

(ii) was taken into account on a subsequent occasion for that purpose other than in respect of either a benefit week to which paragraph (2) applies or a further claim to which paragraph (5) applies, and, where more than one benefit week is identified by reference to heads (i) and (ii), the later or latest such benefit week; and

(c) “relevant subsequent week” means the benefit week in which any award of disability working allowance in respect of the further claim referred to in paragraph (6)(a) would, but for regulation 37(1), have commenced, but it shall not be earlier than the twenty-seventh week after the week in which the existing amount took effect.

(1)

S.R. 1987 No. 461; relevant amending regulations are S.R. 1990 No. 345

(2)

S.R. 1987 No. 465; relevant amending regulations are S.R. 1988 No. 141 and S.R. 1992 No. 7