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The Discretionary Support Regulations (Northern Ireland) 2016

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PART 1General

Citation and commencement

1.  These Regulations may be cited as the Discretionary Support Regulations (Northern Ireland) 2016 and shall come into operation on the commencement of Article 76 of the Welfare Reform (Northern Ireland) Order 2015.

Discretionary Support Awards

2.  Discretionary support may be awarded in accordance with the provisions of these Regulations.

Interpretation

3.  In these Regulations–

“annual income threshold” means the amount calculated in accordance with regulation 15(2);

“appropriate office” means an office of the Department or any other place designated by the Department in relation to any case or class of cases as a place to, or which, any claim, notice, document, evidence or other information may be sent, delivered or received for the purposes of these Regulations and includes a postal address specified by the Department for that purpose;

“child” means a person under the age of 16;

“claim” means a claim for a discretionary support award;

“claimant” means a person and any member of a couple who makes a claim, or on behalf of whom a claim is made, for a discretionary support award;

“close relative” means a member of a couple, parent, step-parent, grandparent, parent-in-law, son, step-son, son-in-law, daughter, step-daughter, daughter-in-law, brother, sister, or if any of the preceding persons is one member of a couple, the other member of that couple;

“couple” means—

(a)

subject to paragraph (e) a man and a woman who are married to each other and are members of the same household;

(b)

a man and a woman who are not married to each other but are living together as husband and wife;

(c)

two people of the same sex who are civil partners of each other and are members of the same household;

(d)

two people of the same sex who are not civil partners of each other but are living together as if they were civil partners; or

(e)

in a case where a person is a member of a polygamous marriage, that person and the member of the polygamous marriage to whom that person was first married,

and for the purposes of paragraph (d) two people of the same sex are regarded as living together as if they are civil partners if, but only if, they would be regarded as living together as husband and wife were they instead two people of the opposite sex;

“disaster” means a sudden and calamitous event causing loss of possessions or property;

“discretionary support award” means either an award of a grant or a loan;

“discretionary support inspector” means a person appointed by the Department in accordance with Article 136 of the Welfare Reform (Northern Ireland) Order 2015;

“discretionary support officer” means an officer of the Department, acting under its authority and executing functions of the Department in relation to the provisions of discretionary support;

“discretionary trust” means a Trust where the Trust assets or the income from them, are allocated entirely at the Trustees’ discretion to any one or more of several beneficiaries or class of beneficiaries. The primary intended beneficiary must have no absolute right to either the capital or the income;

“grant” means a non-repayable discretionary support payment;

“income” includes the income of the other member of a couple and means the remuneration or profits derived from—

(a)

employment under a contract of service or in an office, including elective office;

(b)

a trade, profession or vocation;

(c)

any other paid work; or

(d)

any payments made in accordance with benefit legislation;

“immediate family” means members of a household for whom the claimant has financial responsibility;

“loan” means an interest free repayable discretionary support payment;

“parent” includes a guardian, any person acting in the place of a parent, any other person having parental responsibility for a child and any person having care of a child;

“the Order” means the Welfare Reform (Northern Ireland) Order 2015;

“young person” means a person over the age of 16, but under the age of 18, except where the young person is over the age of 18 and their parents are in receipt of child benefit.

PART 2Claims

Making a claim for a discretionary support award

4.—(1) Claims for a discretionary support award may be made in such manner as the Department may accept as sufficient in any particular case.

(2) Claims may be made in writing on the prescribed form and shall be completed in accordance with the instructions on the form.

(3) Every claim shall be communicated, delivered or sent to an appropriate office.

(4) The Department may require a person who wishes to make a claim for discretionary support to attend for interview at an office of the Department and to make the claim to a discretionary support officer.

(5) The Department shall give the claimant reasonable notice of the date, time and place at which such an interview is to take place.

Date of claim

5.  In the case of a claim—

(a)made by telephone, the date of the claim is the date of the telephone call to the Department;

(b)made in writing, the date of the claim is the date the claim is received in an appropriate office;

(c)made in person, the date of the claim is the date of the meeting with the discretionary support officer.

Evidence and information in connection with a claim

6.  The Department shall require the claimant to supply such further information or evidence in connection with the claim, or any questions arising out of it, as it considers appropriate.

Person unable to act

7.  If a claim for discretionary support is made by or on behalf of a person (“P”), who is unable for the time being to act, the claim shall be made by—

(a)a person who has been appointed to act on P’s behalf by the Department under regulation 33(1) of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987(1); or

(b)a person who has been appointed, with a general power or a power to claim or receive benefit, by P under the Powers of Attorney Act (Northern Ireland) 1971(2), the Enduring Powers of Attorney (Northern Ireland) Order 1987(3) or otherwise.

Decision to award a loan or a grant

8.—(1) Where a claimant applies for a discretionary support award under regulation 4 a discretionary support officer may determine the claim as a claim for a loan or a grant.

(2) In making a decision in relation to a discretionary support award a discretionary support officer shall take into account any guidance issued by the Department.

Withdrawal of a claim

9.  A person who has made a claim may withdraw it at any time before a determination has been made on it, in such manner as the Department may accept as sufficient in any particular case, and any such notice of withdrawal shall have effect when it is received.

PART 3Eligibility

Basic eligibility conditions

10.—(1) A discretionary support award may be made where—

(a)an extreme, exceptional or crisis situation presents a significant risk to the health, safety or well-being of the claimant or a member of the claimant’s immediate family;

(b)the need for discretionary support occurs in Northern Ireland;

(c)the claimant’s income does not exceed the annual income threshold;

(d)the claimant is–

(i)at least 18 years old, except where child benefit is payable in respect of the claimant; or

(ii)a minimum of 16 years old in the case of a young person who is without parental support; and

(e)the need must be satisfied in Northern Ireland.

(2) For the purposes of this regulation a person is not entitled to a discretionary support award unless the person—

(a)is ordinarily resident in Northern Ireland; and

(b)is present in Northern Ireland.

(3) Except in the case of a disaster, discretionary support shall not be awarded in respect of —

(a)living expenses for which a discretionary support award has already been made;

(b)a claim for the same or other items made within any rolling 12 month period from the date an award is made by the same claimant; or

(c)any loan in relation to regulation 11(1)(c) or (d) which exceeds the 3 loan maximum as set out in sub-paragraph (d).

(d)Subject to regulation 12 a claimant is not eligible to be awarded more than three loans or one grant in a rolling 12 month period.

(4) In this regulation “a young person is without parental support” means, where that person is not being looked after by an authority and—

(a)has no parents;

(b)has parents, but cannot live with those parents because–

(i)the person is estranged from them; or

(ii)there is a serious risk to the person’s physical or mental health, or that person would suffer significant harm if the person lived with them; or

(c)is living away from those parents, and neither parent is able to support the person financially because that parent–

(i)has a physical or mental impairment; or

(ii)is detained in custody pending trial or sentence upon conviction or under a sentence imposed by a court.

Loan eligibility

11.—(1) Discretionary support may be awarded in the form of a loan as follows—

(a)by the provision of immediate assistance with short term living expenses;

(b)by the provision of household items, or assistance with the repair or replacement of household items that have been stolen, broken or destroyed;

(c)by the provision of travelling expenses, to the claimant or one or more members of their immediate family, or an escort, including any reasonable charges for overnight accommodation in order to–

(i)visit a close relative who is ill;

(ii)attend a close relative’s funeral;

(iii)ease a domestic crisis;

(iv)visit a child who is with the other parent pending a family court decision;

(v)move to suitable accommodation; or

(d)by providing rent in advance to a landlord other than the Northern Ireland Housing Executive.

(2) A loan shall not be awarded for any of the items and services specified in Schedule 1.

(3) Where paragraph (1)(a) applies short term living expenses shall be limited to those expenses deemed, by a discretionary support officer, as necessary to support a basic standard of living.

(4) Any award to which paragraphs (1)(c), (3), or (5) applies shall not in any case exceed the difference between any sum already repayable by the claimant and the claimant’s partner and an assessment of their ability to repay and a level of debt for the time being acceptable to the Department.

(5) Where paragraph (1)(d) applies the amount of rent to be provided shall not exceed a sum calculated in accordance with paragraph (4)(1) of Schedule 2 of the Housing Benefit Regulations (Northern Ireland) 2006(4).

(6) In this regulation “escort” means a person, who is not an immediate family member, who is permitted to accompany an individual.

Grant eligibility

12.—(1) Discretionary support may be awarded in the form of a grant where the conditions in paragraph (2) are satisfied.

(2) A grant will only be awarded where—

(a)the grant is to provide assistance for a claimant or their immediate family to remain or begin living independently in the community; or

(b)the claimant or their immediate family are prevented from remaining in their home; or

(c)the grant is to provide assistance in the form of living expenses where the claimant is over the acceptable debt threshold; or

(d)where the claimant is eligible for a loan for living expenses and cannot afford to make repayment.

(3) For the purposes of paragraph 2, sub-paragraphs (a) and (b) only one grant may be awarded to a claimant in any rolling 12 month period from the date an award is made except in the event of a disaster.

(4) For the purposes of paragraph 2, sub-paragraphs (c) and (d) only one living expenses grant may be awarded to a claimant in any rolling 12 month period from the date an award is made.

(5) A grant shall not be awarded for any of the items and services specified in Schedule 2.

(6) In this regulation “acceptable debt threshold” means the level of debt determined as acceptable to the Department.

Persons excluded from discretionary support

13.  Discretionary support may not be awarded in respect of a person who is—

(a)a prisoner or a person who is lawfully detained or is on temporary release under rule 27 of the Prisons and Young Offenders Centres Rules (Northern Ireland) 1995(5);

(b)a resident in a residential care home, a nursing home or a hospital in-patient, unless it is expected that the person will be discharged within the following 2 weeks;

(c)a member of a religious order who is fully maintained by that order;

(d)listed in regulation 14 (a) to (c) unless regulation 14 applies.

Persons not eligible for discretionary support unless arising as a consequence of a disaster

14.  Discretionary support may not be awarded except when arising as a consequence of a disaster to—

(a)a person who is (or treated as) in full time third level education;

(b)a person subject to a trade dispute; or

(c)a person under a sanction as applied by the Department,

where that person would otherwise be ineligible for discretionary support.

PART 4Income and earnings

Calculation of income

15.—(1) For the purposes of these Regulations an annual income threshold will apply, above which a claimant may not normally be eligible for discretionary support, unless Schedule 3 applies.

(2) For the purposes of this Part the “Annual income threshold” will be based on a working week of 40 hours over 52 weeks paid at the hourly rate set by the National Minimum Wage Regulations 2015(6) for a person over the age of 25, in force on the date of a claim.

(3) For the purposes of this Part the income of a claimant which does not consist of earnings to be taken into account shall, subject to paragraph (2), be the claimant’s gross income and any capital treated as income under regulation 16.

(4) There shall be disregarded from the calculation of a claimant’s gross income under paragraph (1), any sum, where applicable, specified in Schedule 3.

(5) The income of a child or young person who is a member of the claimant’s immediate family shall not be treated as income of the claimant for the purposes of this regulation.

Capital treated as income

16.—(1) Any capital payable by instalments which are outstanding on the first day in respect of which discretionary support is payable or the date of determination of a claim, whichever is earlier, shall be treated as income.

(2) Any payment paid under an annuity shall be treated as income.

Notional income

17.—(1) A claimant shall be treated as possessing income of which they have deprived themselves for the purpose of securing entitlement to discretionary support or increasing the amount of that support.

(2) Except in the case of—

(a)a discretionary trust;

(b)a trust derived from a payment made in consequence of a personal injury; or

(c)any benefit related to employment which may be payable to the claimant who is not required to be available for employment,

income which would become available to the claimant upon a claim being made, but which has not been acquired by them, shall be treated as possessed by them but only from the date on which it would be so acquired.

(3) Except in the case of a discretionary trust, or a trust derived from a payment made in consequence of a personal injury, any income which is due to be paid to a claimant but has not been paid to them shall be treated as possessed by the claimant.

(4) Where a claimant’s earnings are not ascertainable at the time of the determination of the claim, or of any subsequent review, a discretionary support officer shall treat the claimant as possessing such earnings as is reasonable in the circumstances of the case having regard to the number of hours worked and the earnings paid for comparable employment in the area.

(5) Where—

(a)a claimant performs a service for another person; and

(b)that person makes no payment of earnings or pays less than that paid for a comparable employment in the area,

a discretionary support officer shall treat the claimant as possessing such earnings (if any) as is reasonable for that employment unless the claimant satisfies the discretionary support officer that the means of the person are insufficient for them to pay more for the service; but this paragraph shall not apply to a claimant who is engaged by a charitable or voluntary body or is a volunteer if the discretionary support officer is satisfied that it is reasonable for them to provide the services free of charge.

PART 5Capital

Calculation of capital

18.—(1) For the purposes of these Regulations the capital of a claimant to be taken into account shall, subject to paragraph (2), be the whole of the claimant’s capital calculated in accordance with this Part.

(2) The capital of a claimant includes the capital of the other member of the couple, and any reference to the “claimant” shall, except where the context otherwise requires, be construed, for the purposes of this Part, as if it were a reference to the claimant’s partner.

(3) There shall be disregarded from the calculation of a claimant’s capital under paragraph (1) any capital, where applicable, specified in Schedule 4.

Notional capital

19.—(1) A claimant shall be treated as possessing capital of which they have deprived themselves for the purpose of securing entitlement to discretionary support.

(2) Except in the case of—

(a)a discretionary trust; or

(b)a trust derived from a payment made in consequence of a personal injury,

any capital which would become available to the claimant upon a claim being made but which has not been acquired by them shall be treated as possessed by them but only from the date on which it would be so acquired.

(3) Where a claimant is treated as possessing capital under paragraphs (1) and (2), the foregoing provisions of this Part shall apply for the purposes of calculating its amount as if it was actual capital which they do possess.

Capital jointly held

20.  Where the claimant and one or more persons are beneficially entitled in possession to any capital asset they shall be treated as if each of them were entitled in possession to the whole beneficial interest therein in an equal share.

PART 6Awards and Payments

Principles of determination of an award

21.—(1) An award of discretionary support may take the form of either a loan or a grant.

(2) A discretionary support officer may decide whether or not to make a discretionary support award in a particular case, or the amount or value to be awarded, and shall have regard to all the circumstances of the case and in particular—

(a)the nature, extent and urgency of the need;

(b)the existence of resources including income and capital from which the need may be met either in whole or in part;

(c)the possibility that some other person or body may wholly or partly meet the need;

(d)where the amount is repayable, the conditions attached to that repayment, the means and ability to repay and the time within which repayment is likely;

(e)be satisfied that the award does not exceed the budget allocation;

(f)take account of any general guidance issued by the Department.

(3) An award of a loan shall include a determination that it is recoverable.

(4) The amount or value of a loan to be awarded should normally be the lowest reasonable cost to meet the claimant’s need but the amount shall not in any case exceed the difference between any sum already repayable by the claimant to the Department in respect of discretionary support, social fund, payments on account of benefit, budgeting loan, budgeting advances and the level of debt for the time being acceptable to the Department.

(5) No loan may be awarded in excess of the amount which a discretionary support officer has determined the claimant is likely to be able to repay.

(6) The maximum period permitted for the repayment of a loan will be 52 weeks. Except where it appears to a discretionary support officer that due to exceptional circumstances, the 52 week period will not be met, the loan repayment period may be extended at the point of decision making to a maximum of 78 weeks.

(7) The Department shall inform the claimant, or the person appointed to act on the claimant’s behalf, in writing of its decision on a claim as soon as reasonably practicable and that written notification shall also advise of the right to apply for a review.

Conditions to be satisfied before payment of an award

22.—(1) An award of a loan shall be recoverable under such terms and conditions, as the Department notifies to the claimant or person appointed to act on the claimant’s behalf before payment is made.

(2) An award of a grant shall be made under such terms and conditions, as the Department notifies to the claimant or person appointed to act on the claimant’s behalf before payment is made.

(3) The claimant may be required to inform the Department in writing whether they agree to the terms and conditions contained in the notification issued under paragraph (1) within a period defined by the Department and failure to meet this condition will result in an offer being withdrawn.

(4) Before payment the Department shall be satisfied as to the identity of the claimant.

(5) An award will be withdrawn where the claimant fails to satisfy the conditions in paragraphs (1), (2) & (3)

Payment of an award

23.—(1) Discretionary support is to be paid in accordance with an award as soon as is reasonably practicable after an award has been made and the claimant has agreed to the terms and conditions.

(2) Subject to the claimant satisfying the conditions in regulations 21 and 22 the Department may arrange for an award of discretionary support to be paid—

(a)directly to the claimant by way of a transfer into an account held in the name of the claimant, or an account held jointly as a member of a couple;

(b)to an account of a person appointed to act on behalf of the claimant; or

(c)through the supply of goods or services directly to the claimant to the value of the award.

(3) Payment of an award shall be made to the claimant or person appointed to act on behalf of the claimant unless a discretionary support officer determines otherwise.

PART 7Recovery

Recovery of an award

24.—(1) A discretionary support award that is repayable shall be recoverable by the Department.

(2) A discretionary support award that is not repayable may be recoverable by the Department.

(3) Where it is determined that, whether fraudulently, or otherwise, any person has misrepresented, or failed to disclose, any material fact and in consequence of the misrepresentation or failure, an award of discretionary support has been made, the Department shall be entitled to recover the amount of any payment which the Department would not have made or any sum which the Department would have received but for the misrepresentation or failure to disclose.

(4) Without prejudice to any other method of recovery, the Department may recover an award under paragraph (1), (2) or (3) from benefits.

(5) The Department may recover an award from the person to or for the benefit of whom it was made.

(6) Sections 69ZC to 69ZE of the Social Security Administration (Northern Ireland) Act 1992(7) apply to amounts recoverable under this regulation as they apply to amounts recoverable under section 69ZB of that Act.

PART 8Reviews

Reviews and further reviews

25.—(1) The Department may establish procedures for reviewing a person’s entitlement to a discretionary support award under these Regulations.

(2) The procedures established under paragraph (1) must—

(a)provide for a review to be carried out on the application of any claimant; and

(b)provide for the manner of making such an application.

(3) Such procedures may, in particular, provide for—

(a)the need to take account of any general guidance issued by the Department;

(b)the consideration of the claimant’s entitlement to a discretionary support award by a discretionary support officer;

(c)the further consideration of the claimant’s entitlement to a discretionary support award by a discretionary support inspector, following consideration by a discretionary support officer;

(d)the time limits to be applied to an application for a review of a determination;

(e)the information a discretionary support officer or a discretionary support inspector can take into account in considering the application;

(f)the preparation of a report for a claimant setting out the discretionary support officer’s or the discretionary support inspector’s reasons for their determination and their recommendation as to the manner in which the matter should be finally determined.

Sealed with the official seal of the Department for Communities on 6th July 2016

Legal seal

Brian Doherty

A Senior Officer of the

Department for Communities

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