The Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations (Northern Ireland) 2006

PART VI Assessment of income and capital

SECTION 1 General

Calculation of income and capital of members of claimant’s family and of a polygamous marriage

21.—(1) The income and capital of a claimant’s partner which by virtue of section 132(1) of the Act is to be treated as income and capital of the claimant, shall be calculated or estimated in accordance with the following provisions of this Part in like manner as for the claimant; and any reference to the “claimant” shall be construed for the purposes of this Part as if it were a reference to his partner.

(2) Where a claimant or the partner of a claimant is married polygamously to 2 or more members of his household—

(a) the claimant shall be treated as possessing capital and income belonging to each such member; and

(b) the income and capital of that member shall be calculated in accordance with the following provisions of this Part in like manner as for the claimant.

(3) The income and capital of a child or young person shall not be treated as the income and capital of the claimant.

Circumstances in which income of non-dependant is to be treated as claimant’s

22.—(1) Where it appears to the relevant authority that a non-dependant and the claimant have entered into arrangements in order to take advantage of the housing benefit scheme and the non-dependant has more capital and income than the claimant, that authority shall, except where the claimant is on income support or an income-based jobseeker’s allowance, treat the claimant as possessing capital and income belonging to that non-dependant and, in such a case, shall disregard any capital and income which the claimant does possess.

(2) Where a claimant is treated as possessing capital and income belonging to a non-dependant under paragraph (1) the capital and income of that non-dependant shall be calculated in accordance with the following provisions of this Part in like manner as for the claimant and any reference to the “claimant” shall be construed for the purposes of this Part as if it were a reference to that non-dependant.

SECTION 2 Income

Calculation of income and capital

23.  The income and capital of—

(a) the claimant; and

(b) any partner of the claimant,

shall be calculated in accordance with the rules set out in this Part and any reference in this Part to the claimant shall apply equally to any partner of the claimant.

Claimant in receipt of guarantee credit

24.  In the case of a claimant who is in receipt, or whose partner is in receipt, of a guarantee credit, the whole of his capital and income shall be disregarded.

Calculation of claimant’s income and capital in savings credit only cases

25.—(1) In determining the income and capital of a claimant who has, or whose partner has, an award of state pension credit comprising only the savings credit, the relevant authority shall, subject to the following provisions of this regulation, use the calculation or estimate of the claimant’s or, as the case may be, the claimant’s partner’s income and capital made by the Department for the purpose of determining that award.

(2) The Department shall provide the relevant authority with details of the calculation or estimate—

(a) if the claimant is on housing benefit or has claimed housing benefit, within the 2 working days following the day the calculation or estimate was determined, or as soon as reasonably practicable thereafter; or

(b) if sub-paragraph (a) does not apply, within the 2 working days following the day he receives information from the relevant authority that the claimant or his partner has claimed housing benefit, or as soon as reasonably practicable thereafter.

(3) The details provided by the Department shall include the amount taken into account in that determination in respect of the net income of the person claiming state pension credit.

(4) The relevant authority shall modify the amount of the net income provided by the Department only in so far as necessary to take into account—

(a) the amount of the savings credit payable;

(b) in respect of any dependent children of the claimant, childcare charges taken into account under regulation 28(1)(c);

(c) the higher amount disregarded under these Regulations in respect of—

(i) lone parent’s earnings;

(ii) payments of maintenance, whether under a court order or not, which is made or due to be made by—

(aa) the claimant’s former partner, or the claimant’s partner’s former partner; or

(bb) the parent of a child or young person where that child or young person is a member of the claimant’s family except where that parent is the claimant or the claimant’s partner;

(d) any amount to be disregarded by virtue of paragraph 9(1) of Schedule 5;

(e) the income and capital of any partner of the claimant who is treated as a member of the claimant’s household under regulation 19 to the extent that it is not taken into account in determining the net income of the person claiming state pension credit;

(f) regulation 22, if the relevant authority determines that this provision applies in the claimant’s case;

(g) any income, in excess of £10, which falls to be disregarded under the provisions of paragraph 1 of Schedule 6.

(5) Regulations 27 to 47 shall not apply to the amount of the net income to be taken into account by the relevant authority under paragraph (1), but shall apply (so far as relevant) for the purpose of determining any modifications which fall to be made to that amount under paragraph (4).

(6) The relevant authority shall for the purpose of determining the claimant’s entitlement of housing benefit use, except where paragraphs (7) and (8) apply, the calculation of the claimant’s capital made by the Department, and shall in particular apply the provisions of regulation 41 if the claimant’s capital is calculated as being in excess of £16,000.

(7) If paragraph (8) applies, the relevant authority shall calculate the claimant’s capital in accordance with regulations 41 to 47.

(8) This paragraph applies if—

(a) the Department notifies the relevant authority that the claimant’s capital has been determined as being £16,000 or less;

(b) subsequent to that determination the claimant’s capital rises to more than £16,000; and

(c) the increase occurs whilst there is in force an assessed income period within the meaning of sections 6 and 9 of the State Pension Credit Act.

Calculation of income and capital where state pension credit is not payable

26.  The income and capital of a person to whom neither regulation 24 nor 25 applies shall be calculated or estimated by the relevant authority in accordance with regulations 27 to 47.

Meaning of “income”

27.—(1) For the purposes of these Regulations, “income” means income of any of the following descriptions—

(a) earnings;

(b) working tax credit;

(c) retirement pension income within the meaning of section 16(1) of the State Pension Credit Act;

(d) income from annuity contracts (other than retirement pension income);

(e) a guaranteed income payment;

(f) a payment made under article 21(1)(c) of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2005(1) but only where the condition referred to in article 23(2)(c) is met;

(g) income from capital, other than capital disregarded under Part I of Schedule 7;

(h) social security benefits, other than retirement pension income or any of the following benefits—

(i) disability living allowance;

(ii) attendance allowance payable under section 64 of the Act(2);

(iii) an increase of disablement pension under section 104 or 105 of the Act;

(iv) a payment under regulations made in exercise of the power conferred by paragraph 4(2)(b) of Schedule 8 to the Act;

(v) child benefit;

(vi) any guardian’s allowance payable under section 77 of the Act(3);

(vii) any increase for a dependant, other than the claimant’s partner, payable in accordance with Part IV of the Act;

(viii) any social fund payment made under Part VIII of the Act;

(ix) Christmas bonus payable under Part X of the Act;

(x) housing benefit;

(xi) bereavement payment(4);

(xii) statutory sick pay;

(xiii) statutory maternity pay;

(xiv) statutory paternity pay payable under Part XIIZA of the Act(5);

(xv) statutory adoption pay payable under Part XIIZB of the Act(6);

(xvi) any benefit similar to those mentioned in the preceding provisions of this paragraph payable under legislation having effect in Great Britain;

(i) all foreign social security benefits which are similar to the social security benefits prescribed above;

(j) any payment made under article 30 of the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006(7);

(k) a pension paid to victims of National Socialist persecution under any special provision made by the law of the Federal Republic of Germany, or any part of it, or of the Republic of Austria;

(l) payments under a scheme made under the Pneumoconiosis, etc., (Workers’ Compensation) (Northern Ireland) Order 1979(8);

(m) payments made towards the maintenance of the claimant by his spouse, civil partner, former spouse or former civil partner or towards the maintenance of the claimant’s partner by his spouse, civil partner, former spouse or former civil partner, including payments made—

(i) under a court order;

(ii) under an agreement for maintenance, or

(iii) voluntarily;

(n) payments due from any person in respect of board and lodging accommodation provided by the claimant;

(o) payments consisting of royalties or other sums received as a consideration for the use of, or the right to use, any copyright, patent or trade mark;

(p) any payment made to the claimant in respect of any book registered under the Public Lending Right Scheme 1982(9);

(q) any payment, other than a payment ordered by a court or made in settlement of a claim, made by or on behalf of a former employer of a person on account of the early retirement of that person on grounds of ill-health or disability;

(r) any sum payable by way of pension out of money provided under the Civil List Act 1837(10), the Civil List Act 1937(11), the Civil List Act 1952(12), the Civil List Act 1972(13) or the Civil List Act 1975(14);

(s) any income in lieu of that specified in sub-paragraphs (a) to (p);

(t) any payment of rent or, as the case may be, rates made to a claimant who—

(i) owns the freehold or leasehold interest in any property or is a tenant of any property;

(ii) occupies part of the property, and

(iii) has an agreement with another person allowing that person to occupy that property on payment of rent or, as the case may be, rates;

(u) any payment made at regular intervals under an equity release scheme; and

(v) PPF periodic payments within the meaning of section 17(1) of the State Pension Credit Act(15).

(2) For the purposes of these Regulations, a claimant’s capital, other than capital disregarded under Schedule 7, shall be treated as if it were a weekly income—

(a) in the case of a claimant residing permanently in accommodation to which paragraph (6) applies, of £1 for each £500 in excess of £10,000 and £1 for any excess which is not a complete £500;

(b) in any other case, of £1 for each £500 in excess of £6,000 and £1 for any excess which is not a complete £500.

(3) Where the payment of any social security benefit prescribed under paragraph (1) is subject to any deduction (other than an adjustment specified in paragraph (4)) the amount to be taken into account under paragraph (1) shall be the amount before the deduction is made.

(4) The adjustments specified in this paragraph are those made in accordance with—

(a) the Social Security (Overlapping Benefits) Regulations (Northern Ireland) 1979(16);

(b) the Social Security (Hospital In-Patients) Regulations (Northern Ireland) 2005;

(c) section 30DD or section 30E of the Act(17) (reductions in incapacity benefit in respect of pensions and councillor’s allowances).

(5) Where an award of any working tax credit or child tax credit under the Tax Credits Act is subject to a deduction by way of recovery of an overpayment of working tax credit or child tax credit which arose in a previous tax year the amount to be taken into account under paragraph (1) shall be the amount of working tax credit or child tax credit awarded less the amount of that deduction.

(6) This paragraph applies to accommodation provided—

(a) in a residential care home or nursing home;

(b) in an Abbeyfield Home;

(c) in an independent hospital.

(7) For the purposes of paragraph (6), a person shall be treated as residing permanently in the accommodation notwithstanding that he is absent from it for a period not exceeding 52 weeks.

(8) In paragraph (1)(u), “equity release scheme” means a loan—

(a) made between a person (“the lender”) and the claimant;

(b) by means of which a sum of money is advanced by the lender to the claimant by way of payments at regular intervals; and

(c) which is secured on a dwelling in which the claimant owns an estate or interest and which he occupies as his home.

Calculation of income on a weekly basis

28.—(1) Subject to regulation 32, 59 and 60, for the purposes of section 129(1) of the Act (conditions of entitlement to housing benefit) the income of a claimant who has reached the qualifying age for state pension credit shall be calculated on a weekly basis—

(a) by calculating or estimating the amount which is likely to be his average weekly income in accordance with this Part;

(b) by adding to that amount the weekly income calculated under regulation 27(2);

(c) by then deducting any relevant child care charges to which regulation 29 applies from any earnings which form part of the average weekly income or, in a case where the conditions in paragraph (2) are met, from those earnings plus whichever credit specified in sub-paragraph (b) of that paragraph is appropriate, up to a maximum deduction in respect of the claimant’s family of whichever of the sums specified in paragraph (3) applies in his case.

(2) The conditions of this paragraph are that—

(a) the claimant’s earnings which form part of his average weekly income are less than the lower of either his relevant child care charges or whichever of the deductions specified in paragraph (3) otherwise applies in his case; and

(b) that claimant or, if he is a member of a couple either the claimant or his partner, is in receipt of working tax credit or child tax credit.

(3) The maximum deduction to which paragraph (1)(c) refers shall be—

(a) where the claimant’s family includes only one child in respect of whom relevant child care charges are paid, £175.00 per week;

(b) where the claimant’s family includes more than one child in respect of whom relevant child care charges are paid, £300 per week.

Treatment of child care charges

29.—(1) This regulation applies where a claimant is incurring relevant child care charges and—

(a) is a lone parent and is engaged in remunerative work;

(b) is a member of a couple both of whom are engaged in remunerative work; or

(c) is a member of a couple where one member is engaged in remunerative work and the other—

(i) is incapacitated;

(ii) is an in-patient in hospital, or

(iii) is in prison (whether serving a custodial sentence or remanded in custody awaiting trial or sentence).

(2) For the purposes of paragraph (1) and subject to paragraph (4), a person to whom paragraph (3) applies shall be treated as engaged in remunerative work for a period not exceeding 28 weeks during which he—

(a) is paid statutory sick pay;

(b) is paid short-term incapacity benefit at the lower rate under sections 30A to 30E of the Act(18);

(c) is paid income support on the grounds of incapacity for work under regulation 4ZA of, and paragraph 7 or 14 of Schedule 1B to, the Income Support Regulations(19); or

(d) is credited with earnings on the grounds of incapacity for work under regulation 8B of the Social Security (Credits) Regulations (Northern Ireland) 1975(20).

(3) This paragraph applies to a person who was engaged in remunerative work immediately before—

(a) the first day of the period in respect of which he was first paid statutory sick pay, short-term incapacity benefit or income support on the grounds of incapacity for work; or

(b) the first day of the period in respect of which earnings are credited,

as the case may be.

(4) In a case to which paragraph (2)(c) or (d) applies, the period of 28 weeks begins on the day on which the person is first paid income support or on the first day of the period in respect of which earnings are credited, as the case may be.

(5) Relevant child care charges are those charges for care to which paragraphs (6) and (7) apply, and shall be estimated on a weekly basis in accordance with paragraph (10).

(6) The charges are paid by the claimant for care which is provided—

(a) in the case of any child of the claimant’s family who is not disabled, in respect of the period beginning on that child’s date of birth and ending on the day preceding the first Monday in September following that child’s fifteenth birthday; or

(b) in the case of any child of the claimant’s family who is disabled, in respect of the period beginning on that person’s date of birth and ending on the day preceding the first Monday in September following that person’s sixteenth birthday.

(7) The charges are paid for care which is provided by one or more of the care providers listed in paragraph (8) and are not paid—

(a) in respect of the child’s compulsory education;

(b) by a claimant to a partner or by a partner to a claimant in respect of any child for whom either or any of them is responsible in accordance with regulation 18; or

(c) in respect of care provided by a relative of a child wholly or mainly in the child’s home.

(8) The care to which paragraph (7) refers may be provided—

(a) out of school hours, by a school on school premises or by an education and library board or an HSS trust—

(i) for children who are not disabled in respect of the period beginning on their twelfth birthday and ending on the day preceding the first Monday in September following their fifteenth birthday, or

(ii) for children who are disabled in respect of the period beginning on their twelfth birthday and ending on the day preceding the first Monday in September following their sixteenth birthday;

(b) by a child care provider approved in accordance with the Tax Credit (New Category of Child Care Provider) Regulations 1999(21); or

(c) by a person prescribed in regulations made pursuant to section 12(4) of the Tax Credits Act.

(9) In—

(a) paragraphs (6) and (8)(a), “the first Monday in September” means the Monday which first occurs in the month of September in any year; and

(b) paragraph (8)(a) “education and library board” means an education and library board established under Article 3 of the Education and Libraries (Northern Ireland) Order 1986(22).

(10) Relevant child care charges shall be estimated over such period, not exceeding a year, as is appropriate in order that the average weekly charge may be estimated accurately having regard to information as to the amount of that charge provided by the child minder or person providing the care.

(11) For the purposes of paragraph (1)(c) the other member of a couple is to be treated as incapacitated where—

(a) he is aged not less than 80;

(b) he is aged less than 80 and—

(i) the additional conditions specified in paragraph 13 of Schedule 4 to the Housing Benefit Regulations (additional condition for the higher pensioner and disability premiums) are treated as applying in his case, and

(ii) he satisfies those conditions or would satisfy them but for his being treated as capable of work by virtue of a determination made in accordance with regulations made under section 167E of the Act(23);

(c) the claimant is, or is treated as, incapable of work and has been so incapable, or has been so treated as incapable, of work in accordance with the provisions of, and regulations made under, Part XIIA of the Act (incapacity for work) for a continuous period of not less than 196 days; and for this purpose any 2 or more separate periods separated by a break of not more than 56 days shall be treated as one continuous period;

(d) there is payable in respect of him one or more of the following—

(i) long-term incapacity benefit or short-term incapacity benefit at the higher rate specified in paragraph 2 of Part I of Schedule 4 to the Act(24);

(ii) attendance allowance under section 64 of the Act;

(iii) severe disablement allowance under section 68 of the Act(25);

(iv) disability living allowance;

(v) increase of disablement pension under section 104 of the Act;

(vi) a pension increase under a war pension scheme or an industrial injuries scheme which is analogous to an allowance or increase of disablement pension under head (ii), (iv) or (v);

(e) a pension or allowance to which head (ii), (iv), (v) or (vi) of sub-paragraph (d) refers was payable on account of his incapacity but has ceased to be payable in consequence of his becoming a patient within the meaning of regulation 20(2);

(f) sub-paragraph (d) or (e) would apply to him if the legislative provisions referred to in those sub-paragraphs were provisions under any corresponding enactment having effect in Great Britain; or

(g) he has an invalid carriage or other vehicle provided to him by the Department of Health, Social Services and Public Safety(26) under Article 30(1) of the Health and Personal Social Services Order or provided by the Secretary of State under section 5(2)(a) of, and Schedule 2 to, the National Health Service Act 1977(27) or under section 46 of the National Health Service (Scotland) Act 1978(28).

(12) For the purposes of paragraph (11), once paragraph (11)(c) applies to the claimant, if he then ceases, for a period of 56 days or less, to be incapable, or to be treated as incapable, of work, that paragraph shall, on his again becoming so incapable, or so treated as incapable, of work at the end of that period, immediately thereafter apply to him for so long as he remains incapable, or is treated as remaining incapable, of work.

(13) For the purposes of paragraphs (6) and (8)(a), a person is disabled if he is a person—

(a) in respect of whom disability living allowance is payable, or has ceased to be payable solely because he is a patient;

(b) who has been certified as blind and in consequence he is registered as blind in a register maintained by or on behalf of a Health and Social Services Board; or

(c) who ceased to be registered as blind in such a register within the period beginning 28 weeks before the first Monday in September following that person’s fifteenth birthday and ending on the day preceding the first Monday in September following that person’s sixteenth birthday.

(14) For the purposes of paragraph (1) a person on maternity leave, paternity leave or adoption leave shall be treated as if he is engaged in remunerative work for the period specified in paragraph (15) (“the relevant period”) provided that—

(a) in the week before the period of maternity leave, paternity leave or adoption leave began he was in remunerative work;

(b) the claimant is incurring relevant child care charges within the meaning of paragraph (5); and

(c) he is entitled to statutory maternity pay under section 160 of the Act, statutory paternity pay by virtue of section 167ZA or 167ZB of the Act (29), statutory adoption pay by virtue of section 167ZL of the Act(30) or maternity allowance under section 35 of the Act.

(15) The relevant period shall begin on the day on which the person’s maternity leave, paternity leave or adoption leave commences and shall end on—

(a) the date that leave ends;

(b) if no child care element of working tax credit is in payment on the date that entitlement to maternity allowance, statutory maternity pay, statutory paternity pay or statutory adoption pay ends, the date that entitlement ends; or

(c) if a child care element of working tax credit is in payment on the date that entitlement to maternity allowance, statutory maternity pay, statutory paternity pay or statutory adoption pay ends, the date that entitlement to that award of the child care element of working tax credit ends,

whichever shall occur first.

(16) In paragraph (15), “child care element” of working tax credit means the element of working tax credit prescribed under section 12 of the Tax Credits Act (child care element).

Calculation of average weekly income from tax credits

30.—(1) This regulation applies where a claimant receives a tax credit.

(2) Where this regulation applies, the period over which a tax credit is to be taken into account shall be the period set out in paragraph (3).

(3) Where the instalment in respect of which payment of a tax credit is made is—

(a) a daily instalment, the period is one day, being the day in respect of which the instalment is paid;

(b) a weekly instalment, the period is 7 days, ending on the day on which the instalment is due to be paid;

(c) a 2 weekly instalment, the period is 14 days, commencing 6 days before the day on which the instalment is due to be paid;

(d) a 4 weekly instalment, the period is 28 days, ending on the day on which the instalment is due to be paid.

(4) For the purpose of this regulation “tax credit” means working tax credit.

Calculation of weekly income

31.—(1) Except where paragraphs (2) and (4) apply, for the purposes of calculating the weekly income of the claimant, where the period in respect of which a payment is made—

(a) does not exceed a week, the whole of that payment shall be included in the claimant’s weekly income;

(b) exceeds a week, the amount to be included in the claimant’s weekly income shall be determined—

(i) in a case where that period is a month, by multiplying the amount of the payment by 12 and dividing the product by 52;

(ii) in a case where that period is 3 months, by multiplying the amount of the payment by 4 and dividing the product by 52;

(iii) in a case where that period is a year, by dividing the amount of the payment by 52;

(iv) in any other case, by multiplying the amount of the payment by 7 and dividing the product by the number of days in the period in respect of which it is made.

(2) Where—

(a) the claimant’s regular pattern of work is such that he does not work the same hours every week; or

(b) the amount of the claimant’s income fluctuates and has changed more than once,

the weekly amount of that claimant’s income shall be determined—

(i) if, in a case to which sub-paragraph (a) applies, there is a recognised cycle of work, by reference to his average weekly income over the period of the complete cycle (including, where the cycle involves periods in which the claimant does no work, those periods but disregarding any other absences), or

(ii) in any other case, on the basis of—

(aa) the last 2 payments if those payments are one month or more apart;

(bb) the last 4 payments if the last 2 payments are less than one month apart; or

(cc) calculating or estimating such other payments as may, in the particular circumstances of the case, enable the claimant’s average weekly income to be determined more accurately.

(3) For the purposes of paragraph (2)(b) the last payments are the last payments before the date the claim was made or treated as made or, if there is a subsequent supersession under paragraph 4 of Schedule 7 to the Child Support, Pensions and Social Security Act (Northern Ireland) 2000(31), the last payments before the date of the supersession.

(4) If a claimant is entitled to receive a payment to which paragraph (5) applies, the amount of that payment shall be treated as if made in respect of a period of a year.

(5) This paragraph applies to—

(a) royalties or other sums payable as a consideration for the use of, or the right to use, any copyright, patent or trade mark;

(b) any payment made to the claimant in respect of any book registered under the Public Lending Right Scheme 1982; and

(c) any payment which is made on an occasional basis.

(6) The period under which any benefit under the benefit Acts is to be taken into account shall be the period in respect of which that benefit is payable.

(7) Where payments are made in a currency other than Sterling, the value of the payment shall be determined by taking the Sterling equivalent on the date the payment is made.

(8) The sums specified in Schedule 5 shall be disregarded in calculating—

(a) the claimant’s earnings; and

(b) any amount to which paragraph (5) applies if the claimant or his partner is the first owner of the copyright, patent or trade mark, or the author of the book registered under the Public Lending Right Scheme 1982.

(9) Income specified in Schedule 6 is to be disregarded in the calculation of a claimant’s income.

(10) Schedule 7 shall have effect so that—

(a) the capital specified in Part I shall be disregarded for the purpose of determining a claimant’s income; and

(b) the capital specified in Part II shall be disregarded for the purpose of determining a claimant’s income under regulation 27(2).

(11) In the case of any income taken into account for the purpose of calculating a person’s income, there shall be disregarded any amount payable by way of tax.

Disregard of changes in tax, contributions etc.

32.  In calculating the claimant’s income the appropriate authority may disregard any legislative change—

(a) in the basic or other rates of income tax;

(b) in the amount of any personal tax relief;

(c) in the rates of social security contributions payable under the Act or in the lower earnings limit or upper earnings limit for Class 1 contributions under the Act, the lower or upper limits applicable to Class 4 contributions under the Act or the amount specified in section 11(4) of the Act (small earnings exception in relation to Class 2 contributions);

(d) in the amount of tax payable as a result of an increase in the weekly rate of Category A, B, C or D retirement pension or any addition thereto or any graduated pension payable under the Act; and

(e) in the maximum rate of child tax credit or working tax credit,

for a period not exceeding 30 benefit weeks beginning with the benefit week immediately following the date from which the change is effective.

SECTION 3 Employed earners

Earnings of employed earners

33.—(1) Subject to paragraph (2), “earnings” means in the case of employment as an employed earner, any remuneration or profit derived from that employment and includes—

(a) any bonus or commission;

(b) any payment in lieu of remuneration except any periodic sum paid to a claimant on account of the termination of his employment by reason of redundancy;

(c) any payment in lieu of notice;

(d) any holiday pay;

(e) any payment by way of a retainer;

(f) any payment made by the claimant’s employer in respect of expenses not wholly, exclusively and necessarily incurred in the performance of the duties of the employment, including any payment made by the claimant’s employer in respect of—

(i) travelling expenses incurred by the claimant between his home and place of employment;

(ii) expenses incurred by the claimant under arrangements made for the care of a member of his family owing to the claimant’s absence from home;

(g) the amount of any payment by way of a non-cash voucher which has been taken into account in the computation of a person’s earnings in accordance with Part V of Schedule 3 to the Social Security (Contributions) Regulations 2001(32);

(h) statutory sick pay and statutory maternity pay payable by the employer under the Act;

(i) statutory paternity pay payable under Part XIIZA of the Act;

(j) statutory adoption pay payable under Part XIIZB of the Act;

(k) any sums payable under a contract of service—

(i) for incapacity for work due to sickness or injury, or

(ii) by reason of pregnancy or confinement;

(l) any payment made under the legislation of, or under any scheme operating in, the Republic of Ireland which is analogous to income to which sub-paragraphs (h) to (j) relate.

(2) Earnings shall not include—

(a) subject to paragraph (3), any payment in kind;

(b) any payment in respect of expenses wholly, exclusively and necessarily incurred in the performance of the duties of the employment;

(c) any occupational pension;

(d) any payment of compensation made pursuant to an award by an employment tribunal in respect of unfair dismissal or unlawful discrimination.

(3) Paragraph (2)(a) shall not apply in respect of any non-cash voucher referred to in paragraph (1)(g).

Calculation of net earnings of employed earners

34.—(1) For the purposes of regulation 28, the earnings of a claimant derived or likely to be derived from employment as an employed earner to be taken into account shall, subject to regulation 31(5) and Schedule 5, be his net earnings.

(2) For the purposes of paragraph (1) net earnings shall, except in relation to any payment to which regulation 31(5) refers, be calculated by taking into account the gross earnings of the claimant from that employment over the assessment period, less—

(a) any amount deducted from those earnings by way of—

(i) income tax;

(ii) primary Class 1 contributions under the Act;

(b) one half of any sum paid by the claimant by way of a contribution towards an occupational pension scheme;

(c) one half of the amount calculated in accordance with paragraph (4) in respect of any qualifying contribution payable by the claimant; and

(d) where those earnings include a payment which is payable under any statute of the Parliament of the United Kingdom extending solely to Great Britain and which corresponds to statutory sick pay, statutory maternity pay, statutory paternity pay or statutory adoption pay, any amount deducted from those earnings by way of any contributions which are payable under any statute of the Parliament of the United Kingdom extending solely to Great Britain and which correspond to primary Class 1 contributions under the Act.

(3) In this regulation “qualifying contribution” means any sum which is payable periodically as a contribution towards a personal pension scheme.

(4) The amount in respect of any qualifying contribution shall be calculated by multiplying the daily amount of the qualifying contribution by the number equal to the number of days in the assessment period; and for the purposes of this regulation the daily amount of the qualifying contribution shall be determined—

(a) where the qualifying contribution is payable monthly, by multiplying the amount of the qualifying contribution by 12 and dividing the product by 365;

(b) in any other case, by dividing the amount of the qualifying contribution by the number equal to the number of days in the period to which the qualifying contribution relates.

(5) Where the earnings of a claimant are determined under regulation 31(2)(b), his net earnings shall be calculated by taking into account those earnings over the assessment period, 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 applicable to the assessment period less only the personal relief to which the claimant is entitled under section 257(1) of the Taxes Act(33) (personal allowance) as is appropriate to his circumstances but, if the assessment period 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 sub-paragraph shall be calculated on a pro-rata basis;

(b) an amount equivalent to the amount of the primary Class 1 contributions that would be payable by him under the Act in respect of those earnings if such contributions were payable; and

(c) one half of any sum which would be payable by the claimant by way of a contribution towards an occupational or personal pension scheme, if the earnings so estimated were actual earnings.

(6) 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 appropriate authority, would have been deducted had the claimant been employed in Northern Ireland.

SECTION 4 Self-employed earners

Calculation of earnings of self-employed earners

35.—(1) Where a claimant’s earnings consist of earnings from employment as a self-employed earner, the weekly amount of his earnings shall be determined by reference to his average weekly earnings from that employment—

(a) over a period of one year; or

(b) where the claimant has recently become engaged in that employment or there has been a change which is likely to affect the normal pattern of business, over such other period (“computation period”) as may, in the particular case, enable the weekly amount of his earnings to be determined more accurately.

(2) For the purposes of determining the weekly amount of earnings of a claimant to whom paragraph (1)(b) applies, his earnings over the computation period shall be divided by the number equal to the number of days in that period and multiplying the quotient by 7.

(3) The period over which the weekly amount of a claimant’s earnings is calculated in accordance with this regulation shall be his assessment period.

Earnings of self-employed earners

36.—(1) Subject to paragraph (2), “earnings”, in the case of employment as a self-employed earner, means the gross receipts of the employment and shall include any allowance payable pursuant to provision or arrangements made by the Department for Employment and Learning under sections 2 and 3 of the Disabled Persons (Employment) Act (Northern Ireland) 1945(34) or section 1 of the 1950 Act(35) or any equivalent allowance payable under Republic of Ireland legislation to the claimant for the purpose of assisting him in carrying on his business unless at the date of claim the allowance has been terminated.

(2) “Earnings” in the case of employment as a self-employed earner does not include—

(a) where a claimant occupies a dwelling as his home and he provides in that dwelling board and lodging accommodation for which payment is made, those payments;

(b) any payment made by an authority, as defined in Article 2 of the Children Order, to a claimant who is caring for a child by virtue of arrangements made under Article 27(2)(a) of that Order (provision of accommodation and maintenance by an authority for children whom it is looking after);

(c) any payment made by a voluntary organisation under Article 75(1)(a) of the Children Order (provision of accommodation by voluntary organisations);

(d) any payment made to the claimant or his partner for a person (“the person concerned”) who is not normally a member of the claimant’s household but is temporarily in his care, by—

(i) a Health and Social Services Board or HSS trust;

(ii) a voluntary organisation, or

(iii) the person concerned pursuant to Article 36(7) of the Health and Personal Social Services Order(36); or

(e) any sports award.

Calculation of net profit of self-employed earners

37.—(1) For the purposes of regulation 28 the earnings of a claimant to be taken into account shall be—

(a) in the case of a self-employed earner who is engaged in employment on his own account, the net profit derived from that employment;

(b) in the case of a self-employed earner whose employment is carried on in partnership, his share of the net profit derived from that employment, less—

(i) an amount in respect of income tax and of social security contributions payable under the Act calculated in accordance with regulation 38, and

(ii) one half of the amount calculated in accordance with paragraph (10) in respect of any qualifying premium.

(2) For the purposes of paragraph (1)(a) the net profit of the employment shall, except where paragraph (8) applies, be calculated by taking into account the earnings of the employment over the assessment period less—

(a) subject to paragraphs (4) to (7), any expenses wholly and exclusively incurred in that period for the purposes of that employment;

(b) an amount in respect of—

(i) income tax, and

(ii) social security contributions payable under the Act,

calculated in accordance with regulation 38; and

(c) one half of the amount calculated in accordance with paragraph (10) in respect of any qualifying premium.

(3) For the purposes of paragraph (1)(b) the net profit of the employment shall be calculated by taking into account the earnings of the employment over the assessment period less, subject to paragraphs (4) to (7), any expenses wholly and exclusively incurred in that period for the purposes of the employment.

(4) Subject to paragraph (5), no deduction shall be made under paragraph (2)(a) or (3), in respect of—

(a) any capital expenditure;

(b) the depreciation of any capital asset;

(c) any sum employed or intended to be employed in the setting up or expansion of the employment;

(d) any loss incurred before the beginning of the assessment period;

(e) the repayment of capital on any loan taken out for the purposes of the employment; and

(f) any expenses incurred in providing business entertainment.

(5) A deduction shall be made under paragraph (2)(a) or (3) in respect of the repayment of capital on any loan used for—

(a) the replacement in the course of business of equipment or machinery;

(b) the repair of an existing business asset except to the extent that any sum is payable under an insurance policy for its repair; and

(c) the purchase of land under the Northern Ireland Land Act 1925(37).

(6) The relevant authority shall refuse to make a deduction in respect of any expenses under paragraph (2)(a) or (3) where it is not satisfied given the nature and the amount of the expense that it has been reasonably incurred.

(7) For the avoidance of doubt—

(a) a deduction shall not be made under paragraph (2)(a) or (3) in respect of any sum unless it has been expended for the purposes of the business;

(b) a deduction shall be made thereunder in respect of—

(i) the excess of any value added tax paid over value added tax received in the assessment period;

(ii) any income expended in the repair of an existing business asset except to the extent that any sum is payable under an insurance policy for its repair;

(iii) any payment of interest on a loan taken out for the purposes of the employment.

(8) Where a claimant is engaged in employment as a child minder the net profit of the employment shall be one third of the earnings of that employment, less—

(a) an amount in respect of—

(i) income tax, and

(ii) social security contributions payable under the Act,

calculated in accordance with regulation 38; and

(b) one half of the amount calculated in accordance with paragraph (10) in respect of any qualifying premium.

(9) For the avoidance of doubt where a claimant is engaged in employment as a self-employed earner and he is also engaged in one or more other employments as a self-employed or employed earner any loss incurred in any one of his employments shall not be offset against his earnings in any other of his employments.

(10) The amount in respect of any qualifying premium shall be calculated by multiplying the daily amount of the qualifying premium by the number equal to the number of days in the assessment period; and for the purposes of this regulation the daily amount of the qualifying premium shall be determined—

(a) where the qualifying premium is payable monthly, by multiplying the amount of the qualifying premium by 12 and dividing the product by 365;

(b) in any other case, by dividing the amount of the qualifying premium by the number equal to the number of days in the period to which the qualifying premium relates.

(11) Where the claimant is a self-employed earner in the Republic of Ireland the amounts to be deducted for income tax and social security contributions under this regulation shall be such amounts as, in the opinion of the appropriate authority, would have been deducted had the claimant been employed in Northern Ireland.

(12) In this regulation, “qualifying premium” means any premium which is payable periodically in respect of a retirement annuity contract or a personal pension scheme and is so payable on or after the date of claim.

Deduction of tax and contributions of self-employed earners

38.—(1) The amount to be deducted in respect of income tax under regulation 37(1)(b)(i), (2)(b)(i) or (8)(a)(i) shall be calculated on the basis of the amount of chargeable income and as if that income were assessable to income tax at the lower rate or, as the case may be, the lower rate and the basic rate of tax applicable to the assessment period less only the personal relief to which the claimant is entitled under section 257(1) of the Taxes Act as is appropriate to his circumstances; but, if the assessment period 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.

(2) The amount to be deducted in respect of social security contributions under regulation 37(1)(b)(i), (2)(b)(ii) or (8)(a)(ii) shall be the total of—

(a) the amount of Class 2 contributions payable under section 11(1) or, as the case may be, 11(3) of the Act at the rate applicable to the assessment period except where the claimant’s chargeable income is less than the amount specified in section 11(4) of the Act (small earnings exception) for the tax year applicable to the assessment period; but if the assessment period is less than a year, the amount specified for that tax year shall be reduced pro-rata; and

(b) the amount of Class 4 contributions (if any) which would be payable under section 15 of the Act (Class 4 contributions recoverable under the Income Tax Acts) at the percentage rate applicable to the assessment period on so much of the chargeable income as exceeds the lower limit but does not exceed the upper limit of profits and gains applicable for the tax year applicable to the assessment period; but if the assessment period is less than a year, those limits shall be reduced pro-rata.

(3) In this regulation “chargeable income” means—

(a) except where sub-paragraph (b) applies, the earnings derived from the employment less any expenses deducted under paragraph (2)(a) or, as the case may be, (3) of regulation 37;

(b) in the case of employment as a child minder, one third of the earnings of that employment.

SECTION 5 Other income

Notional income

39.—(1) A claimant shall be treated as possessing—

(a) subject to paragraph (2) the amount of any retirement pension income—

(i) for which no claim has been made, and

(ii) to which he might expect to be entitled if a claim for it were made;

(b) income from an occupational pension scheme which the claimant elected to defer.

(2) Paragraph (1)(a) shall not apply to the following where entitlement has been deferred—

(a) a Category A or Category B retirement pension payable under sections 43 to 55 of the Act;

(b) a shared additional pension payable under section 55A of the Act(38); and

(c) graduated retirement benefit payable under sections 35 or 36 of the National Insurance Act (Northern Ireland) 1966(39).

(3) For the purposes of paragraph (2) entitlement has been deferred—

(a) in the case of Category A or Category B pension, in the circumstances specified in section 55(3) of the Act(40);

(b) in the case of a shared additional pension, in the circumstances specified in section 55C(3) of the Act(41);

(c) in the case of graduated retirement benefit, in the circumstances specified in section 35(4) and (4A) of the National Insurance Act (Northern Ireland) 1966(42).

(4) Where a person, aged not less than 60, is a person entitled to money purchase benefits under an occupational pension scheme or a personal pension scheme, or is a party to, or a person deriving entitlement to a pension under, a retirement annuity contract, and—

(a) 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 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 retirement annuity contract, 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 the date on which it could be expected to be acquired were an application for it to be made.

(5) The amount of any income foregone in a case to which either paragraph (4)(a)(i) or (ii) applies shall be the maximum amount of income which may be withdrawn from the fund and shall be determined by the relevant authority which shall take account of information provided by the pension fund holder in accordance with regulation 63(6).

(6) The amount of any income foregone in a case to which either paragraph (4)(a)(iii) or (b) applies shall be the income that the claimant could have received without purchasing an annuity had the funds held under the relevant scheme or retirement annuity contract been held under a personal pension scheme or occupational pension scheme where income withdrawal was available and shall be determined in the manner specified in paragraph (5).

(7) In paragraph (4), “money purchase benefits” has the meaning it has in the Pension Schemes (Northern Ireland) Act 1993(43).

(8) Subject to paragraph (9), a person shall be treated as possessing income of which he has deprived himself for the purpose of securing entitlement to housing benefit or increasing the amount of that benefit.

(9) Paragraph (8) shall not apply in respect of the amount of an increase of pension or benefit where a person, having made an election in favour of that increase of pension or benefit under Schedule 5 or 5A to the Act(44) or under Schedule 1 to the Graduated Retirement Benefit Regulations, changes that election in accordance with regulations made under Schedule 5 or 5A to that Act in favour of a lump sum.

(10) In paragraph (9), “lump sum” means a lump sum under Schedule 5 or 5A to the Act or under Schedule 1 to the Graduated Retirement Benefit Regulations.

(11) Where a claimant is in receipt of any benefit (other than housing benefit) under the benefit Acts and the rate of that benefit is altered with effect from a date on or after 1st April in any year but not more than 14 days thereafter, the relevant authority shall treat the claimant as possessing such benefit at the altered rate—

(a) in a case in which the claimant’s weekly amount of eligible rent or, as the case may be, rates falls to be calculated in accordance with regulation 59(2)(b) or (c) or, as the case may be, (3)(b) or (c), from 1st April in that year;

(b) in any other case, from the first Monday in April in that year,

to the date on which the altered rate is to take effect.

(12) In the case of a claimant who has, or whose partner has, an award of state pension credit comprising only the savings credit, where a relevant authority treats the claimant as possessing any benefit (other than housing benefit) at the altered rate in accordance with paragraph (11), that authority shall—

(a) determine the income and capital of that claimant in accordance with regulation 25(1), where the calculation or estimate of that income and capital is altered with effect from a date on or after 1st Aril in any year but not more than 14 days thereafter; and

(b) treat that claimant as possessing such income and capital at the altered rate by reference to the period referred to in paragraph (11)(a) or (b), as the case may be.

(13) For the purposes of paragraph (8), a person is not to be regarded as depriving himself of income where—

(a) his rights to benefits under a registered pension scheme are extinguished and in consequence of this he receives a payment from the scheme; and

(b) that payment is a trivial commutation lump sum within the meaning given by paragraph 7 of Schedule 29 to the Finance Act 2004(45).

(14) In paragraph (13) “registered pension scheme” has the meaning given in section 150(2) of the Finance Act 2004.

Income paid to third parties

40.—(1) Any payment of income, other than a payment specified in paragraph (2), to a third party in respect of the claimant shall be treated as possessed by the claimant.

(2) Paragraph (1) shall not apply in respect of a payment of income made under an occupational pension scheme, in respect of a pension or other periodical payment made under a personal pension scheme or a payment made by the Board of the Pension Protection Fund where—

(a) a bankruptcy order has been made in respect of the person in respect of whom the payment has been made or, in Scotland, the estate of that person is subject to sequestration or a judicial factor has been appointed on that person’s estate under section 41 of the Solicitors (Scotland) Act 1980(46);

(b) the payment is made to the trustee in bankruptcy or any other person acting on behalf of the creditors; and

(c) the person referred to in sub-paragraph (a) and his partner does not possess, or is not treated as possessing, any other income apart from that payment.

SECTION 6 Capital

Capital limit

41.  For the purposes of section 130(1) of the Act as it applies to housing benefit (no entitlement to benefit if capital exceeds a prescribed amount), the prescribed amount is £16,000.

Calculation of capital

42.—(1) For the purposes of Part VII of the Act as it applies to housing benefit, the capital of a claimant to be taken into account shall, subject to paragraph (2), be the whole of his capital calculated in accordance with this Part.

(2) There shall be disregarded from the calculation of the claimant’s capital under paragraph (1) any capital, where applicable, specified in Schedule 7.

(3) A claimant’s capital shall be treated as including any payment made to him by way of arrears of—

(a) child tax credit;

(b) working tax credit;

(c) state pension credit,

if the payment was made in respect of a period for the whole or part of which housing benefit was paid before those arrears were paid.

Calculation of capital in the United Kingdom

43.  Capital which a claimant possesses in the United Kingdom shall be calculated—

(a) except in a case to which paragraph (b) applies, at its current market or surrender value less—

(i) where there would be expenses attributable to sale, 10 per cent., and

(ii) the amount of any encumbrance secured on it;

(b) in the case of an Ulster or National Savings Certificate—

(i) if purchased from an issue the sale of which ceased before 1st July last preceding the date on which the claim is made or treated as made, or the date of any subsequent revision or supersession, at the price which it would have realised on that 1st July, had it been purchased on the last day of that issue;

(ii) in any other case, at its purchase price.

Calculation of capital outside the United Kingdom

44.  Capital which a claimant possesses in a country outside the United Kingdom shall be calculated—

(a) in a case where there is no prohibition in that country against the transfer to the United Kingdom of an amount equal to its current market or surrender value in that country, at that value;

(b) in a case where there is such a prohibition, at the price which it would realise if sold in the United Kingdom to a willing buyer,

less, where there would be expenses attributable to sale, 10 per cent. and the amount of any encumbrance secured on it.

Notional capital

45.—(1) A claimant shall be treated as possessing capital of which he has deprived himself for the purpose of securing entitlement to housing benefit or increasing the amount of that benefit except to the extent that the capital which he is treated as possessing is reduced in accordance with regulation 46.

(2) A person who disposes of capital for the purpose of—

(a) reducing or paying a debt owed by the claimant; or

(b) purchasing goods or services if the expenditure was reasonable in the circumstances of the claimant’s case,

shall be regarded as not depriving himself of it.

(3) Where a claimant stands in relation to a company in a position analogous to that of a sole owner or partner in the business of that company, he shall be treated as if he were such sole owner or partner and in such a case—

(a) the value of his holding in that company shall, notwithstanding regulation 42, be disregarded; and

(b) he shall, subject to paragraph (4), be treated as possessing an amount of capital equal to the value or, as the case may be, his share of the value of the capital of that company and the foregoing provisions of this Part shall apply for the purposes of calculating that amount as if it were actual capital which he does possess.

(4) For so long as a claimant undertakes activities in the course of the business of the company, the amount which he is treated as possessing under paragraph (3) shall be disregarded.

(5) Where under this regulation a person is treated as possessing capital, the amount of that capital shall be calculated in accordance with the provisions of this Part as if it were actual capital which he does possess.

Diminishing notional capital rule

46.—(1) Where a claimant is treated as possessing capital under regulation 45(1), the amount which he is treated as possessing—

(a) in the case of a week that 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);

(b) in the case of a 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 in receipt of housing benefit; and

(b) but for regulation 45(1), he would have received an additional amount of housing benefit in that 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 to which paragraph (2)(b) refers;

(b) where the claimant has also claimed state pension credit, the amount of any state pension credit or any additional amount of state pension credit to which he would have been entitled in respect of the benefit week to which paragraph (2) refers but for the application of regulation 21(1) of the State Pension Credit Regulations (Northern Ireland) 2003(47) (notional capital);

(c) where the claimant has also claimed a jobseeker’s allowance, the amount of an income-based jobseeker’s 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 113 of the Jobseeker’s Allowance Regulations(48) (notional capital).

(4) Subject to paragraph (5), for the purposes of paragraph (1)(b) the condition is that the claimant would have been entitled to housing benefit in the relevant week but for regulation 45(1), and in such a case the amount of the reduction shall be equal to the aggregate of—

(a) the amount of housing benefit to which the claimant would have been entitled in the relevant week but for regulation 45(1) and, for the purposes of this sub-paragraph, if the relevant week is a week to which regulation 59(4)(a) refers, that amount shall be determined by dividing the amount of housing benefit to which he would have been so entitled by the number of days in that week for which he was liable to make payments in respect of the dwelling he occupies as his home and multiplying the quotient so obtained by 7;

(b) if the claimant would, but for regulation 21 of the State Pension Credit Regulations (Northern Ireland) 2003, have been entitled to state pension credit in respect of the benefit week, within the meaning of regulation 1(2) 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 shall be determined by dividing the amount of the state pension credit to which he would have been so entitled by the number equal to the number of days in the part-week and multiplying the quotient so obtained by 7;

(c) if the claimant would, but for regulation 113 of the Jobseeker’s Allowance Regulations, have been entitled to an income-based jobseeker’s allowance in respect of the benefit week, within the meaning of regulation 1(2) of those Regulations(49) (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 shall be determined by dividing the amount of the income-based jobseeker’s allowance to which he would have been so entitled by the number equal to the number of days in the part-week and multiplying the quotient so obtained by 7.

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

(a) sub-paragraphs (a) to (c) of paragraph (4) 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 26 or more weeks after—

(i) the date on which the claimant made a claim for housing benefit in respect of which he was first treated as possessing the capital in question under regulation 45(1);

(ii) in a case where there has been at least one re-determination in accordance with paragraph (5), the date on which he last made a claim for housing benefit which resulted in the weekly amount being re-determined, or

(iii) the date on which he last ceased to be entitled to housing benefit,

whichever last occurred; and

(b) the claimant would have been entitled to housing benefit but for regulation 45(1) or regulation 46(1) of the Housing Benefit Regulations.

(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—

“part-week” in paragraph (4)(b) and (c) means—

(a)

a period of less than a week which is the whole period for which state pension credit, or, as the case may be, an income-based jobseeker’s allowance, is payable; and

(b)

any other period of less than a week for which either of those benefits is payable;

“relevant week” means the benefit week in which the capital in question of which the claimant has deprived himself within the meaning of regulation 45(1)—

(a)

was first taken into account for the purpose of determining his entitlement to housing benefit; or

(b)

was taken into account on a subsequent occasion for the purpose of determining or re-determining his entitlement to housing benefit on that subsequent occasion and that determination or re-determination resulted in his beginning to receive, or ceasing to receive, housing benefit,

and where more than one benefit week is identified by reference to paragraphs (a) and (b) of this definition, means the later or latest such benefit week;

“relevant subsequent week” means the benefit week which includes the day on which the further claim or, if more than one further claim has been made, the last such claim was made.

Capital jointly held

47.—(1) Where a claimant and one or more other persons are beneficially entitled in possession to any capital asset, other than a capital asset disregarded under regulation 45(3), they shall be treated as if each of them were entitled in possession to the whole beneficial interest therein in an equal share and the foregoing provisions of this Part shall apply for the purposes of calculating the amount of capital which the claimant is treated as possessing as if it were actual capital which the claimant does possess.

(2) Any premises or land not wholly owned by the claimant shall be disregarded for such period as is reasonable in the circumstances to enable the collection of such information as is necessary to determine the treatment of capital in accordance with paragraph (1).

(1)

S.I. 2005/439

(2)

Section 64 was amended by Article 63(1) of the Welfare Reform and Pensions (Northern Ireland) Order 1999 (S.I. 1999/3147 (N.I. 11))

(3)

Section 77 was amended by Schedule 6 to the Tax Credits Act 2002, paragraph 88 of Schedule 24 to the Civil Partnership Act 2004 and paragraph 30 of Schedule 1 to the Child Benefit Act 2005

(4)

Bereavement payment was introduced by Article 51(1) of the Welfare Reform and Pensions (Northern Ireland) Order 1999

(5)

Part XIIZA was inserted by Article 5 of the Employment (Northern Ireland) Order 2002 (S.I. 2002/2836 (N.I. 2))

(6)

Part XIIZB was inserted by Article 6 of the Employment (Northern Ireland) Order 2002

(7)

S.I. 2006/606

(8)

S.I. 1979/925 (N.I. 9); amended by Article 22 of the Social Security (Northern Ireland) Order 1985 (S.I. 1985/1209 (N.I. 16))

(9)

The Scheme is set out in the Appendix to S.I. 1982/719

(10)

1837 c. 2

(11)

1937 c. 32

(12)

1952 c. 37

(13)

1972 c. 7

(14)

1975 c. 82

(15)

Section 17(1) was amended by paragraph 3(3) of the Schedule to S.R. 2006 No. 37

(16)

S.R. 1979 No. 242

(17)

Section 30DD was inserted by Article 60 of the Welfare Reform and Pensions (Northern Ireland) Order 1999 and section 30E was inserted by Article 5(1) of the Social Security (Incapacity for Work) (Northern Ireland) Order 1994 (S.I. 1994/1898 (N.I. 12))

(18)

Section 30A was inserted by Article 3(1) of the Social Security (Incapacity for Work) (Northern Ireland) Order 1994 and amended by Article 61 of the Welfare Reform and Pensions (Northern Ireland) Order 1999 and paragraph 68 of Schedule 24 to the Civil Partnership Act 2004; section 30B was inserted by Article 4(1) of the Social Security (Incapacity for Work) (Northern Ireland) Order 1994 and amended by paragraphs 14(b) and 18(3) of Schedule 2 to the Pensions (Northern Ireland) Order 1995 (S.I. 1995/3213 (N.I. 22)), paragraph 21 of Schedule 8 to the Welfare Reform and Pensions (Northern Ireland) Order 1999, Schedule 6 to the Tax Credits Act 2002 and paragraph 69 of Schedule 24 to the Civil Partnership Act 2004; section 30C was inserted by Article 5(1) of the Social Security (Incapacity for Work) (Northern Ireland) Order 1994 and amended by paragraph 37 of Schedule 3 to the Tax Credits Act 2002 and section 30D was inserted by Article 5(1) of the Social Security (Incapacity for Work) (Northern Ireland) Order 1994

(19)

Regulation 4ZA was inserted by regulation 4 of S.R. 1996 No. 199 and amended by regulation 5(2) of S.R. 1997 No. 412, regulation 5(3) of S.R. 2000 No. 71 and the Schedule to S.R. 2000 No. 241 and Schedule 1B was inserted by Schedule 1 to S.R. 1996 No. 199 and paragraph 14 was amended by regulation 2 of S.R. 2002 No. 332

(20)

S.R. 1975 No.113; regulation 8B was inserted by regulation 2(6) of S.R. 1996 No. 430 and amended by regulation 3 of S.R. 2000 No. 404 and regulation 2(2) of S.R. 2003 No. 151

(21)

S.I. 1999/3110

(22)

S.I. 1986/594 (N.I. 3)

(23)

Part XIIA, which includes section 167E, was inserted by Articles 7 and 8(1) of the Social Security (Incapacity for Work) (Northern Ireland) Order 1994; section 167E was amended by paragraph 57 of Schedule 6 to the Social Security (Northern Ireland) Order 1998 (S.I. 1998/1506 (N.I. 10))

(24)

Paragraph 2 was substituted by Article 4(2) of the Social Security (Incapacity for Work) (Northern Ireland) Order 1994

(25)

Section 68 was amended by Article 11 of, and paragraph 18 of Schedule 1 to, the Social Security (Incapacity for Work) (Northern Ireland) Order 1994 and regulation 2(2) of S.R. 1994 No. 370 and repealed by Schedule 10 to the Welfare Reform and Pensions (Northern Ireland) Order 1999, subject to savings in Article 4 of S.R. 2000 No. 332 (C. 14)

(26)

See Article 3(6) of the Departments (Northern Ireland) Order 1999 (S.I. 1999/283 (N.I. 1))

(27)

1977 c. 49

(28)

1978 c. 29

(29)

Sections 167ZA and 167ZB were inserted by Article 5 of the Employment (Northern Ireland) Order 2002

(30)

Section 167ZL was inserted by Article 6 of the Employment (Northern Ireland) Order 2002

(31)

2000 c. 4 (N.I.)

(32)

S.I. 2001/1004

(33)

Section 257 was substituted by section 33 of the Finance Act 1988 (c. 39)

(34)

1945 c. 6 (N.I.); sections 2 and 3 were amended by section 1 of the Disabled Persons (Employment) Act (Northern Ireland) 1960 (c. 4 (N.I.)) and Schedule 18 to the Education and Libraries (Northern Ireland) Order 1986 (S.I. 1986/594 (N.I. 3))

(35)

Section 1 was amended by Article 3 of the Employment and Training (Amendment) (Northern Ireland) Order 1988 (S.I. 1988/1087 (N.I. 10)) and Article 5 of the Industrial Training (Northern Ireland) Order 1990 (S.I. 1990/1200 (N.I. 8))

(36)

Article 36 was substituted by Article 25 of the Health and Personal Social Services (Northern Ireland) Order 1991 (S.I. 1991/194 (N.I. 1))

(37)

1925 c. 34

(38)

Section 55A was inserted by paragraph 3 of Schedule 6 to the Welfare Reform and Pensions (Northern Ireland) Order 1999 (S.I. 1999/3147(N.I. 11)) and amended by section 37(3) of the Child Support, Pensions and Social Security Act (Northern Ireland) 2000

(39)

1966 c. 6 (N.I.); sections 35 and 36 continue in force by virtue of Schedules 1 and 2 to S.R. 1978 No. 105, relevant amending Rules are S.R. 1989 No. 373, S.R. 1995 No. 483, S.R. 1996 No. 289, S.R. 1999 No. 371 (C. 28), S.R. 2005 Nos. 121 and 541 and S.R. 2006 No. 109

(40)

Section 55 was substituted by Article 273(1) of the Pensions (Northern Ireland) Order 2005 (S.I. 2005/255 (N.I. 1))

(41)

Section 55C was substituted by Article 273(2) of the Pensions (Northern Ireland) Order 2005

(42)

Sub-sections (4) and (4A) were substituted by regulation 2(2)(a) of S.R. 2005 No. 121

(43)

1993 c. 49; see section 176(1)

(44)

Schedule 5 was amended by paragraph 36 of Schedule 7 to the Pension Schemes (Northern Ireland) Act 1993, paragraph 40 of Schedule 1 to the Social Security (Incapacity for Work) (Northern Ireland) Order 1994 (S.I. 1994/1898 (N.I. 12)), paragraphs 6(2) to (4) and 18(15) and (18) of Schedule 2 to the Pensions (Northern Ireland) Order 1995 (S.I. 1995/3213 (N.I. 22)), section 35(1) of the Child Support, Pensions and Social Security Act (Northern Ireland) 2000 (c. 4 (N.I.)), paragraphs 2 to 13 of Schedule 9 to the Pensions (Northern Ireland) Order 2005 and paragraph 6 of the Schedule to S.R. 2005 No. 434 and Schedule 5A was inserted by paragraph 14 of Schedule 9 to the Pensions (Northern Ireland) Order 2005

(45)

2004 c. 12

(46)

1980 c. 46

(47)

S.R. 2003 No. 28

(48)

Regulation 113 was amended by S.R. 1997 No. 412, S.R. 1998 No. 326, S.R. 1999 No. 391, S.R. 2000 No. 350, S.R. 2001 No. 151, S.R. 2002 Nos. 128 and 132, S.R. 2003 No. 195, S.R. 2004 No. 389 and S.R. 2005 Nos. 98 and 424

(49)

The definition of “benefit week” was amended by regulation 2(2) of S.R. 1996 No. 358 and regulation 2(2)(a) of S.R. 1996 No. 503