23.—(1) Subject to paragraphs (2) and (3), a case shall constitute a case for the purposes of paragraph 5(1) of Schedule 4B to the Order where—
(a)the Department is satisfied that any asset in which the non-applicant has a beneficial interest, or which he has the ability to control—
(i)is capable of being utilised to produce income but has not been so utilised;
(ii)has been invested in such a way that the income obtained from it is less than might reasonably be expected;
(iii)is a chose in action which has not been enforced where the Department is satisfied that such enforcement would be reasonable, or
(iv)has not been sold where the Department is satisfied that the sale of the asset would be reasonable;
(b)any asset has been transferred by the non-applicant to trustees and the non-applicant is a beneficiary of the trust so created; or
(c)any asset has become subject to a trust created by legal implication of which the non-applicant is a beneficiary.
(2) Paragraph (1) shall not apply where—
(a)the total value of any asset referred to in that paragraph does not exceed £10,000 after deduction of the amount owing under any mortgage or charge on that asset; or
(b)the Department is satisfied that any asset referred to in that paragraph is being retained by the non-applicant to be used for a purpose which the Department considers reasonable in all the circumstances of the case.
(3) No application may be made under this regulation where income support or income-based jobseeker’s allowance is paid to or in respect of the non-applicant.
(4) For the purposes of this regulation the term “asset” means—
(a)money, whether in cash or on deposit;
(b)a beneficial interest in land and rights in or over land;
(c)shares as defined in Article 2 of the Companies (Northern Ireland) Order 1986(1), stock, unit trusts, gilt edged securities as defined in paragraph 1 of Schedule 9 to the Taxation of Chargeable Gains Act 1979(2), and other similar financial instruments.
(5) For the purposes of paragraph (4) the term “asset” includes any asset falling within that paragraph which is located outside Northern Ireland.
(6) In this regulation—
(a)“stock” includes shares, debentures and any securities of the body concerned, whether or not constituting a charge on the assets of that body;
(b)“unit trust” means any trust established for the purpose, or having the effect of providing, for persons having funds available for investment, facilities for the participation by them as beneficiaries under the trust, in any profits or income arising from the acquisition, holding, management or disposal of any property whatsoever.
24. A case shall constitute a case for the purposes of paragraph 5(1) of Schedule 4B to the Order where—
(a)the non-applicant has the ability to control the amount of income he receives, including earnings from employment or self-employment and dividends from shares, whether or not the whole of that income is derived from the company or business from which his earnings are derived; and
(b)the Department is satisfied that the non-applicant has unreasonably reduced the amount of his income which would otherwise fall to be taken into account under regulation 7 or 8 of the Maintenance Assessments and Special Cases Regulations by diverting it to other persons or for purposes other than the provision of such income for himself.
25.—(1) Subject to paragraph (2), a case shall constitute a case for the purposes of paragraph 5(1) of Schedule 4B to the Order where the Department is satisfied that the current maintenance assessment is based upon a level of income of the non-applicant which is substantially lower than the level of income required to support the overall life-style of that non-applicant.
(2) Paragraph (1) shall not apply where—
(a)income support or income-based jobseeker’s allowance is paid to or in respect of the non-applicant;
(b)the Department is satisfied that the life-style of the non-applicant is paid for—
(i)out of capital belonging to him, or
(ii)by his partner unless the non-applicant is able to influence or control the amount of income received by that partner.
(3) Where the Department is satisfied in a particular case that the provisions of paragraph (1) would apply but for the provisions of paragraph (2)(b)(ii), it may, whether or not any application on that ground has been made, consider whether the case falls within regulation 27.
26. A case shall constitute a case for the purposes of paragraph 5(1) of Schedule 4B to the Order where—
(a)the housing costs of the non-applicant exceed the limits set out in regulation 18(1) of the Maintenance Assessments and Special Cases Regulations (excessive housing costs);
(b)the non-applicant falls within paragraph (2) of that regulation or would fall within that paragraph if it applied to parents with care; and
(c)the Department is satisfied that the housing costs of the non-applicant are substantially higher than is necessary taking into account any special circumstances applicable to that non-applicant.
27. A case shall constitute a case for the purposes of paragraph 5(1) of Schedule 4B to the Order where a partner of the non-applicant occupies the home with him and the Department considers that it is reasonable for that partner to contribute to the payment of the housing costs of the non-applicant.
28. A case shall constitute a case for the purposes of paragraph 5(1) of Schedule 4B to the Order where an amount in respect of travel to work costs has been included in the calculation of the exempt income of the non-applicant under regulation 9(1)(i) of the Maintenance Assessments and Special Cases Regulations(3) (exempt income: calculation or estimation of E) or, as the case may be, under regulation 10 of those Regulations(4) (exempt income: calculation or estimation of F) applying regulation 9(1)(i), and the Department is satisfied that, in all the circumstances of the case, that amount is unreasonably high.
29. A case shall constitute a case for the purposes of paragraph 5(1) of Schedule 4B to the Order where—
(a)an amount in respect of travel to work costs has, in the calculation of a maintenance assessment, been included in the calculation of the exempt income of the non-applicant under regulation 9(1)(i) of the Maintenance Assessments and Special Cases Regulations or, as the case may be, under regulation 10 of those Regulations applying regulation 9(1)(i); and
(b)the Department is satisfied that the non-applicant has sufficient income remaining after the deduction of the amount that would be payable under that assessment, had the amount referred to in paragraph (a) not been included in its calculation, for it to be inappropriate for all or part of that amount to be included in the exempt income of the non-applicant.
S.I. 1986/1032 (N.I. 6)
Sub-paragraph (i) was added by regulation 9(5)(a)(ii) of S.R. 1995 No. 162
Regulation 10 was amended by regulation 5(4) of S.R. 1993 No. 164 and regulation 9(6) of S.R. 1995 No. 162