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The Universal Credit Regulations (Northern Ireland) 2016

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CHAPTER 2EARNED INCOME

Meaning of “earned income”

51.  “Earned income” means—

(a)the remuneration or profits derived from—

(i)employment under a contract of service or in an office, including elective office,

(ii)a trade, profession or vocation, or

(iii)any other paid work; or

(b)any income treated as earned income in accordance with this Chapter.

Meaning of other terms relating to earned income

52.—(1) In this Chapter—

“car” has the meaning in section 268A of the Capital Allowances Act 2001(1);

“employed earnings” has the meaning in regulation 55;

“gainful self-employment” has the meaning in regulation 65;

HMRC” means Her Majesty’s Revenue and Customs;

“motor cycle” has the meaning in section 268A of the Capital Allowances Act 2001;

“the PAYE Regulations” means the Income Tax (Pay As You Earn) Regulations 2003(2);

“relievable pension contributions” has the meaning in section 188 of the Finance Act 2004(3);

“self-employed earnings” has the meaning in regulation 57;

“start-up period” has the meaning in regulation 64.

(2) References in this Chapter to a person participating as a service user are to—

(a)a person who is being consulted by or on behalf of—

(i)a body which has a statutory duty to provide services in the field of health, social care or social housing, or

(ii)a body which conducts research or undertakes monitoring for the purpose of planning or improving such services,

in their capacity as a user, potential user, carer of a user or person otherwise affected by the provision of those services,

(b)a person who is being consulted by or on behalf of—

(i)the Department in relation to any of its functions in the field of social security or child support or under section 1 of the Employment and Training Act (Northern Ireland) 1950(4) (general functions of the Department as to employment and training for employment), or

(ii)a body which conducts research or undertakes monitoring for the purpose of planning or improving such functions,

in their capacity as a person affected or potentially affected by the exercise of those functions or the carer of such a person, or

(c)the carer of a person consulted under sub-paragraph (a) or (b).

Calculation of earned income – general principles

53.—(1) The calculation of a person’s earned income in respect of an assessment period is, unless otherwise provided in this Chapter, to be based on the actual amounts received in that period.

(2) Where the Department—

(a)makes a determination as to whether the financial conditions in Article 10 of the Order are met before the expiry of the first assessment period in relation to a claim for universal credit, or

(b)makes a determination as to the amount of a person’s unearned income in relation to an assessment period where a person has failed to report information in relation to that earned income,

that determination may be based on an estimate of the amounts received or expected to be received in that assessment period.

Surplus earnings

54.—(1) This regulation applies in relation to a claim for universal credit where—

(a)the claimant (or either of joint claimants) was entitled to an award of universal credit that terminated within the 6 months ending on the first day in respect of which the claim is made (“the old award”), and

(b)there were surplus earnings in the assessment period in which the old award terminated.

(2) Where this regulation applies, the amount of any surplus earnings in a month—

(a)that would have been an assessment period for the old award had it continued (including the month which is the assessment period in which the old award terminated), and

(b)is the last such month preceding the first assessment period for a new award,

is to be treated as earned income for the purposes of determining whether there is entitlement to a new award or, if there is entitlement to a new award, calculating the amount of the award.

(3) Whether there are surplus earnings in the assessment period in which the old award terminated or in any of the subsequent 5 months that would have been assessment periods for the old award (had it continued), is to be determined as follows—

Assessment period in which the old award terminated
  • There are surplus earnings in the assessment period in which the old award terminated if the total earned income for that assessment period exceeds the relevant threshold (“the original surplus”).

  • Month 1

  • There are surplus earnings in the first month after the assessment period in which the old award terminated if the original surplus, combined with the total earned income for the month, exceeds the relevant threshold.

  • Month 2

  • There are surplus earnings in the second month after the assessment period in which the old award ended if the earned income for that month, including any surplus earnings from the previous month, exceeds the relevant threshold.

  • Months 3, 4 and 5

  • Surplus earnings for the third, fourth and fifth month are to be calculated in the same way as for the second month.

(4) For the purposes of paragraph (3)—

(a)where, in the case of a joint claim, there is an old award for each claimant because each claimant was previously entitled to universal credit as a single person or as a member of a different couple the surplus earnings are to be calculated separately in accordance with paragraph (3) as if the claimant were a single person and, if there is an amount of surplus earnings in relation to both old awards, both amounts are to be treated as earned income for the purposes of the new award, and

(b)if—

(i)a single claimant in relation to a new award was entitled to the old award as a joint claimant, or

(ii)either of the joint claimants in relation to a new award was entitled to the old award as a member of a different couple,

the original surplus is to be apportioned so that the amount to be attributed to the claimant bears the same proportion to the whole of the original surplus as the claimant’s earned income in the assessment period in which the old award terminated bears to the total earned income in that assessment period.

(5) A person is not to be treated as having earned income by virtue of this regulation if, at the time that person makes a claim for universal credit, he or she has recently been a victim of domestic violence (within the meaning of regulation 96).

(6) In this regulation—

“total earned income” is earned income of the claimant or, if the claimant is a member of a couple, the couple’s combined earned income, but does not include any amount a claimant would be treated as having by virtue of regulation 63 (the minimum income floor);

“the nil UC threshold” is the amount of total earned income above which there would be no entitlement to universal credit, expressed by the following formula—

Where—

M is the maximum amount of an award of universal credit(5);

U is unearned income(6);

WA is the work allowance(7),

and, in determining those amounts in relation to the first and any subsequent months after the termination of the old award, the Department may make such assumptions as to the claimant’s circumstances as it considers appropriate;

“the relevant threshold” is the nil UC threshold plus £300.

Employed earnings

55.—(1) This regulation applies for the purposes of calculating earned income from employment under a contract of service or in an office including elective office (“employed earnings”).

(2) Employed earnings comprise any amounts that are general earnings as defined in section 7(3) of the ITEPA but excluding—

(a)amounts that are treated as earnings under Chapters 2 to 11 of Part 3 of that Act (employment income: earnings and benefit etc treated as income), and

(b)amounts that are exempt from income tax under Part 4 of that Act (employment income: exemptions).

(3) In the calculation of employed earnings the following are to be disregarded—

(a)expenses that are allowed to be deducted under Chapter 2 of Part 5 of the ITEPA (employment income: deductions allowed from earnings), and

(b)expenses arising from participation as a service user (see regulation 52(2)).

(4) The following benefits are to be treated as employed earnings—

(a)statutory sick pay;

(b)statutory maternity pay;

(c)statutory paternity pay;

(d)statutory adoption pay; and

(e)statutory shared parental pay.

(5) A repayment of income tax or national insurance contributions received by a claimant from HMRC in respect of a tax year in which the person was in paid work is to be treated as employed earnings unless it is taken into account as self-employed earnings under regulation 57(3).

(6) In calculating the amount of a person’s employed earnings in respect of an assessment period, there are to be deducted from the amount of general earnings or benefits specified in paragraphs (2) to (4)—

(a)any relievable pension contributions made by the person in that period,

(b)any amounts paid by the person in that period in respect of the employment by way of income tax or primary Class 1 contributions under section 6(1) of the Contributions and Benefits Act, and

(c)any sums withheld as donations to an approved scheme under Part 12 of the ITEPA (payroll giving) by a person required to make deductions or repayments of income tax under the PAYE Regulations.

(7) Employed earnings also comprise any payment made under the legislation of, or under any scheme operating in, the Republic of Ireland which is analogous to any income to which paragraph (2) relates.

Employee involved in trade dispute

56.  A person who has had employed earnings and has withdrawn their labour in furtherance of a trade dispute is, unless their contract of service has been terminated, to be assumed to have employed earnings at the same level as he would have had were it not for the trade dispute.

Self-employed earnings — treatment of losses

57.—(1) This regulation applies for the purpose of calculating earned income that is not employed earnings and is derived from carrying on a trade, profession or vocation (“self employed earnings”).

(2) A person’s self-employed earnings in respect of an assessment period are to be calculated as follows—

Step 1

Calculate the amount of the person’s profit or loss in respect of each trade, profession or vocation carried on by the person by—

(a)taking the actual receipts in that assessment period, and

(b)deducting any amounts allowed as expenses under regulation 59 or 60.

Where a trade, profession or vocation is carried on in a partnership, take the amount of the profit or loss attributable to the person’s share in the partnership.

Step 2

If the person has carried on more than one trade, profession or vocation in the assessment period, add together the amounts resulting from step 1 in respect of each trade, profession or vocation.

Step 3

Deduct from the amount resulting from step 1 or (if applicable) step 2 any payment made by the person to HMRC in the assessment period in respect of—

(c)Class 2 contributions under section 11(2), (6) or (8) of the Contributions and Benefits Act or Class 4 contributions under section 15 of that Act, or

(d)income tax incurred by virtue of carrying on a trade, profession or vocation.

If the amount resulting from steps 1 to 3 is nil or a negative amount, the amount of the person’s self-employed earnings in respect of the assessment period is nil (and ignore the following steps).

Step 4

If the amount resulting from step 3 is greater than nil, deduct from that amount any relievable pension contributions made by the person in the assessment period (unless a deduction has been made in respect of those contributions in calculating the person’s employed earnings).

If the amount resulting from this step is nil or a negative amount, the person’s self-employed earnings in respect of the assessment period are nil (and ignore the following step).

Step 5

If the amount resulting from step 4 is greater than nil, deduct from that amount any unused losses (see regulation 58), taking the oldest first.

If the amount resulting from this step is greater than nil, that is the amount of the person’s self-employed earnings for the assessment period.

If the amount resulting from this step is nil or a negative amount, the amount of the person’s self-employed earnings in respect of the assessment period is nil.

(3) The receipts referred to in paragraph (2) include receipts in kind and any refund or repayment of income tax, value added tax or national insurance contributions relating to the trade, profession or vocation.

(4) Where the purchase of an asset has been deducted as an expense in any assessment period and, in a subsequent assessment period, the asset is sold or ceases to be used for the purposes of a trade, profession or vocation carried on by the person, the proceeds of sale (or, as the case may be, the amount that would be received for the asset if it were sold at its current market value) are to be treated as a receipt in that subsequent assessment period.

(5) Where the person is a self-employed earner in the Republic of Ireland the amounts to be deducted for income tax and National Insurance contributions under this regulation shall be such amounts as, in the opinion of the Department, would have been deducted had that person been employed in Northern Ireland.

Unused losses

58.—(1) For the purpose of regulation 57(2), a person has an unused loss if—

(a)in calculating the person’s self-employed earnings for any of the previous 11 assessment periods, the amount resulting from steps 1 to 3 in regulation 57(2) was a negative amount (a “loss”), and

(b)the loss has not been extinguished in a subsequent assessment period.

(2) For the purposes of paragraph (1)(b) a loss is extinguished if no amount of that loss remains after it has been deducted at step 5 in regulation 57(2).

(3) Where a person was entitled to a previous award of universal credit and the last day of entitlement in respect of that award fell within the 6 months preceding the first day of entitlement in respect of the new award, the Department may, for the purposes of this regulation (provided the person provides such information as it requires), treat the assessment periods under the previous award and any months between that award and the current award as assessment periods under the current award.

Permitted expenses

59.—(1) The deductions allowed in the calculation of self-employed earnings are amounts paid in the assessment period in respect of—

(a)expenses that have been wholly and exclusively incurred for purposes of the trade, profession or vocation, or

(b)in the case of expenses that have been incurred for more than one purpose, an identifiable part or proportion that has been wholly and exclusively incurred for the purposes of the trade, profession or vocation,

excluding any expenses that were incurred unreasonably.

(2) Payments deducted under paragraph (1) may include value added tax.

(3) No deduction may be made for payments in respect of—

(a)expenditure on non-depreciating assets (including property, shares or other assets held for investment purposes);

(b)repayment of capital in relation to a loan taken out for the purposes of the trade, profession or vocation;

(c)expenses for business entertainment.

(4) A deduction for a payment of interest in relation to a loan taken out for the purposes of the trade, profession or vocation may not exceed £41.

(5) This regulation is subject to regulation 60.

Flat rate deductions for mileage and use of home and adjustment for personal use of business premises

60.—(1) This regulation provides for alternatives to the deductions that would otherwise be allowed under regulation 59.

(2) Instead of a deduction in respect of the actual expenses incurred in relation to the acquisition or use of a motor vehicle, the following deductions are to be allowed according to the mileage covered on journeys undertaken in the assessment period for the purposes of the trade, profession or vocation—

(a)in a car, van or other motor vehicle (apart from a motorcycle), 45 pence per mile for the first 833 miles and 25 pence per mile thereafter, and

(b)on a motorcycle, 24 pence per mile,

and, if the motor vehicle is a car, the only deduction allowed for the acquisition or use of that vehicle is a deduction under this paragraph.

(3) Where a person carrying on a trade, profession or vocation incurs expenses in relation to the use of accommodation occupied as their home, instead of a deduction in respect of the actual expenses, a deduction is allowed according to the number of hours spent in the assessment period on income generating activities related to the trade, profession or vocation as follows—

(a)at least 25 hours but no more than 50 hours, £10;

(b)more than 50 hours but no more than 100 hours, £18;

(c)more than 100 hours, £26.

(4) Where premises which are used by a person mainly for the purposes of a trade, profession or vocation are also occupied by that person for his personal use, whether alone or with other persons, the deduction allowed for expenses in relation to those premises is the amount that would be allowed under regulation 59(1) if the premises were used wholly and exclusively for purposes of the trade, profession or vocation, but reduced by the following amount according to the number of persons occupying the premises for his personal use—

(a)£350 for one person;

(b)£500 for 2 persons;

(c)£650 for 3 or more persons.

Notional earned income

61.—(1) A person who has deprived himself of earned income, or whose employer has arranged for them to be so deprived, for the purpose of securing entitlement to universal credit or to an increased amount of universal credit is to be treated as possessing that earned income.

(2) Such a purpose is to be treated as existing if, in fact, entitlement or higher entitlement to universal credit did result and, in the opinion of the Department, this was a foreseeable and intended consequence of the deprivation.

(3) If a person provides services for another person and—

(a)the other person makes no payment for those services or pays less than would be paid for comparable services in the same location, and

(b)the means of the other person were sufficient to pay for, or pay more for, those services,

the person who provides the services is to be treated as having received the remuneration that would be reasonable for the provision of those services.

(4) Paragraph (3) does not apply where—

(a)the person is engaged to provide the services by a charitable or voluntary organisation and the Department is satisfied that it is reasonable to provide the services free of charge or at less than the rate that would be paid for comparable services in the same location;

(b)the services are provided by a person who is participating as a service user (see regulation 52(2)), or

(c)the services are provided under or in connection with a person’s participation in an employment or training programme approved by the Department for Employment and Learning.

Information for calculating earned income- real time information etc

62.—(1) Unless paragraph (2) applies, a person must provide such information for the purposes of calculating their earned income at such times as the Department may require.

(2) Where a person is, or has been, engaged in an employment in respect of which their employer is a Real Time Information employer—

(a)the amount of the person’s employed earnings from that employment for each assessment period is to be based on the information which is reported to HMRC under the PAYE Regulations and is received by the Department from HMRC in that assessment period,(8) and

(b)for an assessment period in which no information is received from HMRC, the amount of employed earnings in relation to that employment is to be taken to be nil.

(3) The Department may determine that paragraph (2) does not apply in respect of —

(a)a particular employment, where it considers that the information from the employer is unlikely to be sufficiently accurate or timely, or

(b)a particular assessment period where—

(i)no information is received from HMRC and the Department considers that this is likely to be because of a failure to report information (which includes the failure of a computer system operated by HMRC, the employer or any other person), or

(ii)where the Department considers that the information received from HMRC is incorrect or fails to reflect the definition of employed earnings in regulation 55, in some material respect.

(4) Where the Department determines that paragraph (2) does not apply, it must make a decision as to the amount of the person’s employed earnings for the assessment period in accordance with regulation 55 (employed earnings) using such information or evidence as it thinks fit.

(5) When the Department makes a decision in accordance with paragraph (4) it may—

(a)treat a payment of employed earnings received by the person in one assessment period as received in a later assessment period (for example where the Department has received information in that later period or would, if paragraph (2) applied, have expected to receive information about that payment from HMRC in that later period), or

(b)where a payment of employed earnings has been taken into account in that decision, disregard information about the same payment which is received from HMRC.

(6) Paragraph (5) also applies where the Department makes a decision under regulation 41(3) of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2016 in a case where the person disputes the information provided by HMRC.

(7) In this regulation “Real Time Information Employer” has the meaning in regulation 2A(1) of the PAYE Regulations(9)

Gainful self-employment

Minimum income floor

63.—(1) This regulation applies to a claimant who—

(a)is in gainful self-employment (see regulation 65), and

(b)would apart from this regulation, fall within Article 27 of the Order (claimants subject to all work related requirements).

(2) Where this regulation applies to a single claimant, for any assessment period in respect of which the claimant’s earned income is less than their individual threshold, the claimant is to be treated as having earned income equal to that threshold.

(3) Where this regulation applies to a claimant who is a member of a couple, for any assessment period in respect of which—

(a)the claimant’s earned income is less than their individual threshold, and

(b)the couple’s combined earned income is less than the couple threshold,

the claimant is to be treated as having earned income equal to their individual threshold minus any amount by which that amount of earned income combined with their partner’s earned income would exceed the couple threshold.

(4) In this regulation references to the claimant’s individual threshold and to the couple threshold are to the amounts set out in regulation 89(2) and 89(3) respectively, converted to net amounts by deducting such amount for income tax and national insurance contributions as the Department considers appropriate.

(5) Where this regulation applies in respect of an assessment period in which surplus earnings are treated as an amount of earned income under regulation 54 (surplus earnings), that amount is to be added to the claimant’s earned income before this regulation is applied and, in the case of joint claimants, it is to be added to the earned income of either member of the couple so as to produce the lowest possible amount of combined earned income after this regulation is applied.

(6) An assessment period referred to in this regulation does not include an assessment period which falls wholly within a start-up period or begins or ends in a start-up period.

Start-up period

64.—(1) A “start-up period” is a period of 12 months and applies from the beginning of the assessment period in which the Department determines that a claimant is in gainful self-employment where—

(a)the claimant has begun to carry on the trade, profession or vocation which is their main employment in the 12 months preceding the beginning of that assessment period, and

(b)the claimant is taking active steps to increase their earnings from that employment to the level of the claimant’s individual threshold (see regulation 89).

(2) No start-up period may apply in relation to a claimant where a start-up period has previously applied in relation to that claimant, whether in relation to the current award or any previous award of universal credit, unless that previous start-up period—

(a)began more than 5 years before the beginning of the assessment period referred to in paragraph (1), and

(b)applied in relation to a different trade, profession or vocation which the claimant has ceased to carry on.

(3) The Department may terminate a start-up period at any time if the person is no longer in gainful self-employment or is no longer taking the steps referred to in paragraph (1)(b).

Meaning of “gainful self-employment”

65.  A claimant is in gainful self-employment for the purposes of regulations 63 and 64 where the Department has determined that—

(a)the claimant is carrying on a trade, profession or vocation as their main employment,

(b)their earnings from that trade, profession or vocation are self-employed earnings, and

(c)the trade, profession or vocation is organised, developed, regular and carried on in expectation of profit.

(1)

2001 c. 2; section 268A was inserted by section 30 of the Finance Act 2009 c. 10.

(5)

The maximum amount of an award of universal credit is determined by Article 13(2) of the Welfare Reform (Northern Ireland) Order 2015.

(6)

For the meaning of “unearned income” see Chapter 3 of Part 6.

(7)

For the meaning of “work allowance” see Regulation 23.

(8)

See also regulation 41(1) of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decision and Appeals) Regulations (Northern Ireland) 2016 which provides for an alteration in the amount of employed earnings based on information from HMRC to be prescribed for the purposes of section 139D(1)(b)(vi) of the Social Security Administration Act 1992. The effect of this is that the award may be adjusted without a decision by the Secretary of State (subject to the person having the right to request a decision by the Secretary of State where they dispute the information provided by HMRC).

(9)

Regulation 2A was inserted by regulation 4 of S.I. 2012/822.

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