103.—(1) For the purposes of regulation 94 (calculation of income other than earnings) the income of a claimant which does not consist of earnings to be taken into account shall, subject to paragraphs (2) to (5), be his gross income and any capital treated as income under regulations 104 and 106 (capital treated as income and modifications in respect of children and young persons).
(2) There shall be disregarded from the calculation of a claimant’s gross income under paragraph (1) any sum, where applicable, specified in Schedule 6.
(3) Where the payment of any benefit under the Order or under the Benefits Act is subject to any deduction by way of recovery, the amount to be taken into account under paragraph (1) shall be the gross amount to which the beneficiary is entitled.
(4) Where the claimant is in receipt of payments under the earnings top-up scheme operated by the Secretary of State for Social Security(1), and those payments are subject to any deduction by way of recovery, the amount to be taken into account under paragraph (1) shall be the amount that the claimant would have received but for that deduction.
(5) Where a loan is made to a person pursuant to arrangements made under Article 3 of the Education (Student Loans) (Northern Ireland) Order 1990(2) or section 1 of the Education (Student Loans) Act 1990(3) and that person ceases to be a student before the end of the academic year in respect of which the loan is payable or, as the case may be, before the end of his course, a sum equal to the weekly amount apportionable under regulation 136(2) (treatment of student loans) shall be taken into account under paragraph (1) for each week, in the period over which the loan fell to be apportioned, following the date on which that person ceases to be a student; but in determining the weekly amount apportionable under regulation 136(2) so much of that paragraph as provides for a disregard shall not have effect.
(6) For the avoidance of doubt there shall be included as income to be taken into account under paragraph (1) any payment to which regulation 98(2) or 100(2) (payments not earnings) applies.
104.—(1) Any capital payable by instalments which are outstanding on the first day in respect of which an income-based jobseeker’s allowance is payable or, in the case of a review, the date of that review, shall, if the aggregate of the instalments outstanding and the amount of the claimant’s capital otherwise calculated in accordance with Chapter VI (self-employed earners) exceeds £8,000, be treated as income.
(2) Any payment received under an annuity shall be treated as income.
(3) In the case of a person who is, or would be, prevented from being entitled to a jobseeker’s allowance by Article 16 of the Order (trade disputes), any payment by a Health and Social Services Board or an HSS trust under Article 18, 35 or 36 of the Children (Northern Ireland) Order 1995(4) (Health and Social Services Boards' or HSS trusts' duty to promote welfare of children and powers to grant financial assistance to persons in, or formerly in, their care) shall be treated as income.
(4) Any earnings to the extent that they are not a payment of income shall be treated as income.
105.—(1) A claimant shall be treated as possessing income of which he has deprived himself for the purpose of securing entitlement to a jobseeker’s allowance or increasing the amount of that allowance, or for the purpose of securing entitlement to, or increasing the amount of, income support.
(2) Except in the case of—
(a)a discretionary trust;
(b)a trust derived from a payment made in consequence of a personal injury;
(c)an increase of child benefit payable to a claimant under regulation 2(2) of the Child Benefit and Social Security (Fixing and Adjustment of Rates) Regulations (Northern Ireland) 1976(5) (rates of child benefit);
(d)family credit or disability working allowance;
(e)a jobseeker’s allowance;
(f)payments under the earnings top-up scheme operated by the Secretary of State for Social Security;
(g)a personal pension scheme where the claimant is aged under 60,
income which would become available to the claimant upon application being made but which has not been acquired by him shall be treated as possessed by him but only from and including the date on which it could be expected to be acquired were an application made.
(3) Where a person, aged not less than 60, is a member of, or a person deriving entitlement to a pension under, a personal pension scheme, and—
(a)in the case of a personal pension scheme other than one referred to in sub-paragraph (b), 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 or part 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 contract or trust scheme approved under Chapter III of Part XIV of the Income and Corporation Taxes Act 1988, 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 and including the date on which it could be expected to be acquired were an application for it to be made.
(4) The amount of any income foregone in a case to which head (i) or (ii) of paragraph (3)(a) applies shall be the maximum amount of income which may be withdrawn from the fund and shall be determined by the adjudication officer who shall take account of information provided by the pension fund holder in accordance with regulation 7(5) of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987(6).
(5) The amount of any income foregone in a case to which head (iii) of paragraph (3)(a), or paragraph (3)(b) applies shall be the income that the claimant could have received without purchasing an annuity had the fund held under the relevant personal pension scheme been held under a personal pension scheme where income withdrawal was available and shall be determined in the manner specified in paragraph (4).
(6) Subject to paragraph (7), any income which is due to be paid to the claimant but has not been paid to him, shall be treated as possessed by the claimant.
(7) Paragraph (6) shall not apply to—
(a)any amount to which paragraph (8) or (9) applies;
(b)a payment to which section 72(2) or (3) of the Administration Act (abatement of prescribed payments from public funds which are not made before the prescribed date, and abatement from prescribed benefits where maintenance not paid) applies, and
(c)a payment from a discretionary trust, or a trust derived from a payment made in consequence of a personal injury.
(8) This paragraph applies to an amount which is due to be paid to the claimant under an occupational pension scheme but which is not paid because the trustees or managers of the scheme have suspended or ceased payment due to an insufficiency of resources.
(9) This paragraph applies to any amount by which a payment made to the claimant from an occupational pension scheme falls short of the payment to which he was due under the scheme where the shortfall arises because the trustees or managers of the scheme have insufficient resources available to them to meet in full the scheme’s liabilities.
(10) Any payment of income, other than a payment of income made under the Macfarlane Trust, the Macfarlane (Special Payments) Trust, the Macfarlane (Special Payments) (No. 2) Trust, the Fund, the Eileen Trust or the Independent Living Funds, made—
(a)to a third party in respect of a single claimant or in respect of a single claimant or in respect of a member of the family shall be treated—
(i)in a case where that payment is derived from a payment of any benefit under the Order or under the Benefits Act, a war disablement pension or war widows pension, as possessed by that single claimant, if it would normally be paid to him, or as possessed by that member of the family, if it would normally be paid to that member;
(ii)in any other case, as possessed by that single claimant or by that member of the family to the extent that it is used for the food, ordinary clothing or footwear, household fuel, rent or rates for which housing benefit is payable, or any housing costs to the extent that they are met under regulation 83(f) or 84(1)(g), of that single claimant or, as the case may be, of any member of the family;
(b)to a single claimant or a member of the family in respect of a third party (but not in respect of another member of the family) shall be treated as possessed by that claimant or, as the case may be, that member of the family to the extent that it is kept or used by him or used by or on behalf of any member of the family,
but, except where sub-paragraph (a)(i) applies and in the case of a person to who is, or would be, prevented from being entitled to a jobseeker’s allowance by Article 16 of the Order (trade disputes), this paragraph shall not apply to any payment in kind.
(11) Where the claimant lives in a residential care home or a nursing home, or is temporarily absent from such a home, any payment made by a person other than the claimant or a member of his family in respect of some or all of the cost of maintaining the claimant or a member of his family in that home shall be treated as possessed by the claimant or by that member of his family.
(12) Where a claimant’s earnings are not ascertainable at the time of the determination of the claim or of any subsequent review the adjudication officer shall treat the claimant as possessing such earnings as is reasonable in the circumstances of the case having regard to the number of hours worked and the earnings paid for comparable employment in the area.
(13) Where—
(a)a claimant performs a service for another person, and
(b)that person makes no payment of earnings or pays less than that paid for a comparable employment in the area,
the adjudication officer shall treat the claimant as possessing such earnings (if any) as is reasonable for that employment unless the claimant satisfies him that the means of that person are insufficient for him to pay or to pay more for the service; but this paragraph shall not apply to a claimant who is engaged by a charitable or voluntary organisation or is a volunteer if the adjudication officer is satisfied in any of those cases that it is reasonable for him to provide his services free of charge.
(14) Where a claimant is treated as possessing any income under any of paragraphs (1) to (11) the foregoing provisions of this Part shall apply for the purposes of calculating the amount of that income as if a payment had actually been made and as if it were actual income which he does possess.
(15) Where a claimant is treated as possessing any earnings under paragraph (12) or (13) the foregoing provisions of this Part shall apply for the purposes of calculating the amount of those earnings as if a payment had actually been made and as if they were actual earnings which he does possess, except that regulation 99(4) (calculation of net earnings of employed earners) shall not apply and his net earnings shall be calculated by taking into account the earnings which he is treated as possessing, less—
(a)an amount in respect of income tax equivalent to an amount calculated by applying to those earnings the lower rate or, as the case may be, the lower rate and the basic rate of tax in the year of assessment less only the personal relief to which the claimant is entitled under sections 257(1), 257A(1) and 259 of the Income and Corporation Taxes Act 1988 (personal reliefs) as is appropriate to his circumstances; but, if the period over which those earnings are to be taken into account is less than a year, the earnings to which the lower rate of tax is to be applied and the amount of the personal relief deductible under this paragraph shall be calculated on a pro rata basis;
(b)where the weekly amount of those earnings equals or exceeds the lower earnings limit, an amount representing primary Class 1 contributions under the Benefits Act, calculated by applying to those earnings the initial and main primary percentages in accordance with section 8(1)(a) and (b) of that Act, and
(c)one half of any sum payable by the claimant in respect of a pay period by way of a contribution towards an occupational or personal pension scheme.
(16) Where the claimant is an employed earner in the Republic of Ireland the amounts to be deducted for income tax and primary Class 1 contributions under this regulation shall be such amounts as, in the opinion of the adjudication officer, would have been deducted had the claimant been employed in Northern Ireland.
(17) In this regulation—
“ordinary clothing or footwear” means clothing or footwear for normal daily use, but does not include school uniforms, or clothing or footwear used solely for sporting activities;
“pension fund holder” means with respect to a personal pension scheme the trustees, managers or scheme administrators, as the case may be, of the scheme concerned;
“resources” has the same meaning as in section 176(1) of the Pension Schemes (Northern Ireland) Act(7) (interpretation).
106.—(1) Any capital of a child or young person payable by instalments which are outstanding on the first day in respect of which an income-based jobseeker’s allowance is payable or, in the case of a review, the date of that review, shall, if the aggregate of the instalments outstanding and the amount of that child’s or young person’s other capital calculated in accordance with Chapter VI of this Part in like manner as for the claimant would exceed £3,000, be treated as income.
(2) In the case of a child or young person who is residing at an educational establishment at which he is receiving relevant education—
(a)any payment made to the educational establishment, in respect of that child’s or young person’s maintenance, by or on behalf of a person who is not a member of the family or by a member of the family out of funds contributed for that purpose by a person who is not a member of the family, shall be treated as income of that child or young person but it shall only be taken into account over periods during which that child or young person is present at that educational establishment, and
(b)if a payment has been so made, for any period in a benefit week in term-time during which that child or young person returns home, he shall be treated as possessing an amount of income in that week calculated by multiplying the amount of personal allowance and disabled child premium, if any, applicable in respect of that child or young person by the number equal to the number of days in that week in which he was present at his educational establishment and dividing the product by 7; but this sub-paragraph shall not apply where the educational establishment is provided under Article 6 of the Education and Libraries (Northern Ireland) Order 1986(8) (duty of boards to secure primary and secondary education) by an education and library board.
(3) Where a child or young person is resident at an educational establishment and he is wholly or partly maintained at that establishment by an education and library board under Article 6 of the Education and Libraries (Northern Ireland) Order 1986 he shall for each day he is present at that establishment be treated as possessing an amount of income equal to the sum obtained by dividing the amount of personal allowance and disabled child premium, if any, applicable in respect of him by 7.
(4) Where the income of a child or young person who is a member of the claimant’s family calculated in accordance with Chapters I to V of this Part exceeds the amount of the personal allowance and disabled child premium, if any, applicable in respect of that child or young person, the excess shall not be treated as the income of the claimant.
(5) Where the capital of a child or young person if calculated in accordance with Chapter VI of this Part in like manner as for the claimant, except as provided in paragraph (1), would exceed £3,000, any income of that child or young person shall not be treated as the income of the claimant.
(6) In calculating the net earnings or net profit of a child or young person there shall be disregarded (in addition to any sum which falls to be disregarded under paragraphs 14 to 16 of Schedule 5) any sum specified in paragraphs 17 and 18 of that Schedule (earnings to be disregarded).
(7) Any income of a child or young person which is to be disregarded under Schedule 6 (income other than earnings to be disregarded) shall be disregarded in such manner as to produce the result most favourable to the claimant.
(8) Where a child or young person is treated as possessing any income under paragraph (2) or (3) the foregoing provisions of this Part shall apply for the purposes of calculating that income as if a payment had actually been made and as if it were actual income which he does possess.
(9) For the purposes of this regulation, a child or young person shall not be treated as present at his educational establishment on any day if on that day he spends the night with the claimant or a member of his household.
Copies of the rules relating to the earnings top-up scheme are available from the Department of Social Security, B2B, 9th Floor, The Adelphi, John Adam Street, London WC2N 6HT
S.R. 1976 No. 233; relevant amending regulations are S.R. 1980 No. 37, S.R. 1993 No. 169 and S.R. 1995 No. 71
S.R. 1987 No. 465; regulation 7(5) was added by regulation 5(3) of S.R. 1995 No. 367