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The Disability Working Allowance (General) Regulations 1991

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PART IGENERAL

Citation and commencement

1.  These Regulations may be cited as the Disability Working Allowance (General) Regulations 1991 and shall come into force on 7th April 1992.

Interpretation

2.  (1)  In these Regulations, unless the context otherwise requires—

“the Act” means the Social Security Act 1986;

“assessment period” means such period as is prescribed in regulations 16 to 19 over which income falls to be calculated;

“attendance allowance” means—

(a)

an attendance allowance under section 35 of the Social Security Act(1);

(b)

an increase of disablement pension under section 61 or 63 of that Act(2);

(c)

a payment under regulations made in exercise of the power conferred by section 159(3)(b) of that Act;

(d)

an increase of an allowance which is payable in respect of constant attendance under section 5 of the Industrial Injuries and Diseases (Old Cases) Act 1975(3);

(e)

a payment by virtue of article 14, 15, 16, 43 or 44 of the Personal Injuries (Civilians) Scheme 1983(4) or any analogous payment; or

(f)

any payment based on need for attendance which is paid as part of a war disablement pension;

“claim” means a claim for disability working allowance;

“claimant” means a person claiming disability working allowance;

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

“concessionary payment” means a payment made under arrangements made by the Secretary of State with the consent of the Treasury which is charged either to the National Insurance Fund or to a Departmental Expenditure Vote to which payments of benefit under the Act, the Social Security Act or the Child Benefit Act 1975(5) are charged;

“date of claim” means the date on which the claimant makes, or is treated as making, a claim for disability working allowance;

“earnings” has the meaning prescribed in regulation 21 or, as the case may be, 24;

“employed earner” shall be construed in accordance with section 2(1)(a) of the Social Security Act(6);

“lone parent” means a person who has no partner and who is responsible for, and a member of the same household as, a child or young person;

“mobility allowance” means an allowance under section 37A of the Social Security Act(7) ;

“mobility supplement” means any supplement under article 26A of the Naval, Military and Air Forces etc (Disablement and Death) Service Pensions Order 1983(8) including such a supplement by virtue of any other scheme or order or under article 25A of the Personal Injuries (Civilians) Scheme 1983(9) ;

“net earnings” means such earnings as are calculated in accordance with regulation 22;

“net profit” means such profit as is calculated in accordance with regulation 25;

“occupational pension” means any pension or other periodical payment under an occupational pension scheme but does not include any discretionary payment out of a fund established for relieving hardship in particular cases;

“partner” means, where a claimant—

(a)

is a member of a married or unmarried couple, the other member of that couple,

(b)

is married polygamously to two or more members of the same household, any such member;

“payment” includes a part of a payment;

“policy of life insurance” means any instrument by which the payment of money is assured on death (except death by accident only) or the happening of any contingency dependent on human life, or any instrument evidencing a contract which is subject to payment of premiums for a term dependent on human life;

“self-employed earner” shall be construed in accordance with section 2(1)(b) of the Social Security Act;

“single claimant” means a claimant who neither has a partner nor is a lone parent;

“Social Security Act” means the Social Security Act 1975(10) ;

“student” has the meaning prescribed in regulation 41;

“the Independent Living Fund” means the charitable trust established out of funds provided by the Secretary of State for the purpose of providing financial assistance to those persons incapacitated by or otherwise suffering from very severe disablement who are in need of such assistance to enable them to live independently;

“the Macfarlane (Special Payments) Trust” means the trust of that name, established on 29th January 1990 partly out of funds provided by the Secretary of State, for the benefit of certain persons suffering from haemophilia;

“the Macfarlane (Special Payments) (No. 2) Trust” means the trust of that name, established on 3rd May 1991 partly out of funds provided by the Secretary of State, for the benefit of certain persons suffering from haemophilia and other beneficiaries;

“the Macfarlane Trust” means the charitable trust, established partly out of funds provided by the Secretary of State to the Haemophilia Society, for the relief of poverty or distress among those suffering from haemophilia;

“week” means a period of seven days beginning with Sunday;

“week of claim” means the week which includes the date of claim;

“year of assessment” has the meaning prescribed in section 832(1) of the Income and Corporation Taxes Act 1988(11) ;

“young person” has the meaning prescribed in regulation 8.

(2) Unless the context otherwise requires, any reference in these Regulations to a numbered regulation, Part or Schedule is a reference to the regulation, Part or Schedule bearing that number in these Regulations and any reference in a regulation or Schedule to a numbered paragraph is a reference to the paragraph in that regulation or Schedule bearing that number.

PART IIDISABILITY TEST

Person at a disadvantage in getting a job

3.  (1)  A person has a disability which puts him at a disadvantage in getting a job where—

(a)in respect of an initial claim one or more of the paragraphs in Parts I, II or III of Schedule 1 apply to him;

(b)in respect of a repeat claim one or more of the paragraphs in Part I or Part II of Schedule 1 apply to him.

(2) In this regulation and in regulation 4, the expressions “initial claim” and “repeat claim” have the same meanings as in section 27B of the Act(12) .

Declaration by claimant

4.  On an initial claim, a declaration by the claimant that he has a physical or mental disability which puts him at a disadvantage in getting a job is not conclusive that for the purposes of section 20(6A)(b) of the Act he has a disability, where—

(a)the claim itself contains contrary indications, or

(b)the adjudication officer has before him other evidence which contradicts that declaration.

PART IIIPRESENCE IN GREAT BRITAIN AND REMUNERATIVE WORK

Circumstances in which a person is treated as being or as not being in Great Britain

5.  (1)  A person shall be treated as being in Great Britain if, on the date of claim—

(a)he is present and ordinarily resident in Great Britain; and

(b)his partner, if he has one, is ordinarily resident in the United Kingdom; and

(c)his earnings derive at least in part from remunerative work in the United Kingdom; and

(d)his earnings do not wholly derive from remunerative work outside the United Kingdom nor do the earnings of his partner, if he has one.

(2) A person shall be treated as not being in Great Britain during any period for which he, or his partner, is entitled to be paid disability working allowance or family credit under the law of Northern Ireland.

Remunerative work

6.  (1)  For the purposes of section 20(6A)(a) of the Act, and subject to paragraph (3) a person shall be treated as engaged and normally engaged in remunerative work where—

(a)the work he undertakes is for not less than 16 hours per week;

(b)the work is done for payment or in expectation of payment; and

(c)he is employed at the date of claim and satisfies the requirements of paragraph (5).

(2) A person who does not satisfy all the requirements of sub-paragraphs (a) to (c) of paragraph (1) shall not be treated as engaged and normally engaged in remunerative work.

(3) A person who otherwise satisfies all the requirements of paragraph (1) shall not be treated as engaged and normally engaged in remunerative work if he is engaged by a charitable or voluntary body or is a volunteer where the only payment received by him, or due to be paid to him, is a payment which is to be disregarded under regulation 27(2) and paragraph 2 of Schedule 3 (sums to be disregarded in the calculation of income other than earnings).

(4) In determining for the purposes of sub-paragraph (a) of paragraph (1) whether a person has undertaken work of not less than 16 hours per week—

(a)there shall be included in the calculation any time allowed—

(i)for meals or refreshment; or

(ii)for visits to a hospital, clinic or other establishment for the purpose only of treating or monitoring the person’s disability, respect of that time; and

(b)where at the date of claim the claimant has within the previous 5 weeks—

(i)started a new job;

(ii)resumed work after a break of at least 13 weeks; or

(iii)changed his hours, hours, or where these are expected to fluctuate, the average number of hours, which he is expected to work in a week; or

(c)where none of heads (i) to (iii) of sub-paragraph (b) of paragraph (3) apply, and

(i)a recognised cycle of working has been established at the date of claim, the hours worked shall be calculated by reference to the average number of hours worked in a week over the period of one complete cycle (including where the cycle involves periods in which the person does not work, those periods, but disregarding any other absences); or

(ii)no recognised cycle of working has been established at that date, the hours worked shall be calculated by reference to the average number of hours worked over the 5 weeks immediately preceding the week in which the claim is made, or such other length of time preceding that week as may, in the particular case, enable the person’s weekly average hours of work to be determined more accurately.

(5) Subject to paragraph (6), the requirements of this paragraph are that the person—

(a)worked not less than 16 hours in either—

(i)the week of claim; or

(ii)either of the two weeks immediately preceding the week of claim; or

(b)is expected by his employer to work not less than 16 hours in the week next following the week of claim; or

(c)cannot satisfy the requirements of sub-paragraph (a) or (b) above at the date of claim because he is or will be absent from work by reason of a recognised, customary or other holiday but he is expected by his employer to work not less than 16 hours in the week following his return to work, sub-paragraph (a) of paragraph (4) shall apply to this paragraph as it applies to sub-paragraph (a) of paragraph (1).

(6) For the purposes of paragraph (5), work which a person does only qualifies if—

(a)it is the work which he normally does, and

(b)it is likely to last for a period of 5 weeks or more beginning with the week in which the claim is made.

Income-related benefits

7.  For the purposes of subsection (6E) of section 20 of the Act the prescribed circumstances are that the person’s weekly applicable amount included a higher pensioner or disability premium in respect of him, determined—

(a)in case of income support, in accordance with paragraphs 10(1)(b) or 11, and 12 of Part III of Schedule 2 to the Income Support (General) Regulations 1987(13) (applicable amounts);

(b)in the case of housing benefit, in accordance with paragraphs 10(1)(b) or 11, and 12 of Part III of Schedule 2 to the Housing Benefit (General) Regulations 1987(14) (applicable amounts);

(c)in the case of community charge benefit, in accordance with paragraphs 11 or 12, and 13 of Part III of Schedule 1 to the Community Charge Benefits (General) Regulations 1989(15) (applicable amounts); or

(d)in accordance with any provision equivalent to one of those specified in sub-paragraphs (a) to (c) above and having effect in Northern Ireland.

PART IVMEMBERSHIP OF A FAMILY

Persons of a prescribed description

8.  (1)  Subject to paragraph (2), a person of a prescribed description for the purposes of section 20(11) of the Act (meaning of the family) as it applies to disability working allowance is a person aged 16 or over but under 19 who is receiving full-time education within section 2(1)(b) of the Child Benefit Act 1975(16) (meaning of child), and in these Regulations such a person is referred to as “a young person”.

(2) Paragraph (1) shall not apply to a person—

(a)who is entitled to income support or would, but for section 20(9) of the Act (provision against dual entitlement of members of family), be so entitled;

(b)who is receiving advanced education within the meaning of regulation 1(2) of the Child Benefit (General) Regulations 1976(17) ; or

(c)who has ceased to receive full-time education but is to continue to be treated as a child by virtue of regulation 7 of the Child Benefit (General) Regulations 1976.

Circumstances in which a person is to be treated as reponsible or not responsible for another

9.  (1)  Subject to the following provisions of this regulation, a person shall be treated as responsible for a child or young person who is normally living with him.

(2) Where a child or young person spends equal amounts of time in different households, or where there is a question as to which household he is living in, the child or young person shall be treated for the purposes of paragraph (1) as normally living with—

(a)the person who is receiving child benefit in respect of him; or

(b)if there is no such person—

(i)where only one claim for child benefit has been made in respect of him, the person who made that claim, or

(ii)in any other case the person who has the primary responsibility for him.

(3) For the purposes of these Regulations a child or young person shall be treated as the responsibility of only one person during the period of an award and any person other than the one treated as responsible for the child or young person under the foregoing paragraphs shall be treated as not so responsible.

Membership of the same household

10.  (1)  Except in a case to which paragraph (2) applies, where a claimant or any partner is treated as responsible for a child or young person by virtue of regulation 9 (circumstances where a person is treated as responsible or not responsible for another), that child or young person and any child of that child or young person shall be treated as a member of the claimant’s household.

(2) A child or young person shall not be treated as a member of the claimant’s household in any case where the child or young person—

(a)is a patient or in residential accommodation on account of physical or mental handicap or physical or mental illness and has been so accommodated for the 12 weeks immediately before the date of claim and is no longer in regular contact with the claimant or any member of the claimant’s household; or

(b)is in a foster placement, or in Scotland boarded out, with the claimant or his partner prior to adoption; or

(c)is in a foster placement, or in Scotland boarded out, with the claimant or his partner under a relevant enactment; or

(d)has been placed for adoption with the claimant or his partner pursuant to a decision under the Adoption Agencies Regulations 1983(18) or the Adoption Agencies (Scotland) Regulations 1984(19) ; or

(e)is detained in custody under a sentence imposed by a court.

(3) In this regulation—

(a)“patient” means a person (other than a person who is serving a sentence imposed by a court in a prison or youth custody institution or in Scotland, young offender’s institution) who is regarded as receiving free in-patient treatment within the meaning of the Social Security (Hospital In-Patients) Regulations 1975(20) ;

(b)“relevant enactment” means the Army Act 1955(21) , the Air Force Act 1955(22) , the Naval Discipline Act 1957(23) , the Matrimonial Proceedings (Children) Act 1958(24) , the Social Work (Scotland) Act 1968(25) , the Family Law Reform Act 1969(26) , the Children and Young Persons Act 1969(27) , the Matrimonial Causes Act 1973(28) , the Guardianship Act 1973(29) , the Children Act 1975(30) , the Adoption Act 1976(31) , the Domestic Proceedings and Magistrates' Courts Act 1978(32) , the Adoption (Scotland) Act 1978(33) , the Child Care Act 1980(34) and the Children Act 1989(35) ;

(c)“residential accommodation” means accommodation for a person whose stay in the accommodation has become other than temporary which is provided under—

(i)sections 21 to 24 and 26 of the National Assistance Act 1948(36) (provision of accommodation); or

(ii)section 21(1) of, and paragraph 1 or 2 of Schedule 8 to, the National Health Service Act 1977(37) (prevention, care and after-care) or, in Scotland, for the purposes of section 27 of the National Health Services (Scotland) Act 1947(38) (prevention of illness and after-care) or under section 59 of the Social Work (Scotland) Act 1968(39) (provision of residential and other establishments) or under section 7 of the Mental Health (Scotland) Act 1984(40) (function of local authorities).

Circumstances in which a person is to be treated as being no longer a member of the same household

11.  (1)  Where one member of a married or unmarried couple has taken up residence in accommodation provided under sections 21 to 24 and 26 of the National Assistance Act 1948 (provision of accommodation) he shall be treated as no longer being a member of the same household as his partner unless the stay in that accommodation is temporary.

(2) Where one of the members of a married or unmarried couple is a hospital patient or detained in custody he shall not be treated, on this account, as ceasing to be a member of the same household as his partner—

(a)unless he has been a patient in a hospital for 52 weeks or more; or

(b)unless he is a patient detained in a hospital provided under section 4 of the National Health Service Act 1977(41) (special hospitals) or section 90(1) of the Mental Health (Scotland) Act 1984 (provision of hospitals for patients requiring special security); or

(c)unless he is detained in custody whilst serving a sentence of 52 weeks or more imposed by a court, his partner wherever the conditions in sub-paragraphs (a), (b) or (c) are fulfilled.

(3) In this regulation “patient” has the same meaning as in regulation 10(3)(a) (membership of the same household).

PART VINCOME AND CAPITAL

CHAPTER IGENERAL

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

12.  (1)  The income and capital of a claimant’s partner and, subject to regulation 30 (modifications in respect of children and young persons), the income of a child or young person, which by virtue of section 22(5) 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, except where the context otherwise requires, be construed, for the purposes of this Part, as if it included a reference to his partner or that child or young person.

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

(a)the claimant shall be treated as possessing capital and income belonging to each such member and the income of any child or young person who is one of that member’s family; and

(b)the income and capital of that member or, as the case may be, the income of that child or young person shall be calculated in accordance with the following provisions of this Part in like manner as for the claimant or, as the case may be, as for any child or young person who is a member of his family.

Calculation of income and capital of students

13.  The provisions of Chapters II to VI of this Part (income and capital) shall have effect in relation to students and their partners subject to the modifications set out in Chapter VII (students) thereof.

Rounding of fractions

14.  Where any calculation under this Part results in a fraction of a penny that fraction shall, if it would be to the claimant’s advantage, be treated as a penny, otherwise it shall be disregarded.

CHAPTER IINORMAL WEEKLY INCOME

Calculation of income on a weekly basis

15.  (1)  For the purposes of section 20(6A) of the Act (conditions of entitlement to disability working allowance), the income of a claimant shall be calculated on a weekly basis—

(a)by ascertaining in accordance with this Chapter and Chapter V of this Part (other income) the amount of his normal weekly income; and

(b)by adding to that amount the weekly income calculated under regulation 40 (calculation of tariff income from capital).

(2) For the purposes of paragraph (1) “income” includes capital treated as income under regulation 28 (capital treated as income) and income which a person is treated as possessing under regulation 29 (notional income).

Normal weekly earnings of employed earners

16.  (1)  Subject to regulation 19, where the claimant’s income consists of earnings from employment as an employed earner, his normal weekly earnings shall be determined by reference to his earnings from that employment in accordance with the following provisions of this regulation.

(2) Subject to paragraph (7), where the claimant is paid weekly, his normal weekly earnings shall be determined by reference to his earnings over 5 consecutive weeks in the 6 weeks immediately preceding the week in which the date of claim falls.

(3) Subject to paragraph (7), where at the date of claim there is a trade dispute or period of short-time working at the claimant’s place of employment, then his normal weekly earnings shall be determined by reference to his earnings over the 5 weeks immediately preceding the start of that dispute or period of short-time working.

(4) Subject to paragraph (7), where the claimant is paid monthly, his normal weekly earnings shall be determined by reference to his earnings—

(a)over a period of 2 months immediately preceding the week in which the date of claim falls; or

(b)where, at the date of claim, there is a trade dispute or a period of short-time working at his place of employment, over a period of 2 months immediately preceding the date of the start of that dispute or period of short-time working.

(5) Subject to paragraph (7), whether or not paragraph (2), (3) or (4) applies, where a claimant’s earnings fluctuate or are not likely to represent his weekly earnings, his normal weekly earnings shall be determined by reference to his weekly earnings over such other period preceding the week in which the date of claim falls as may, in any particular case, enable his normal weekly earnings to be determined more accurately.

(6) Where a claimant’s earnings include a bonus or commission which is paid within 52 weeks preceding the week in which the date of claim falls, and the bonus or commission is paid separately or relates to a period longer than the period relating to the other earnings with which it is paid, his normal weekly earnings shall be treated as including an amount calculated in accordance with regulation 23 (calculation of bonus or commission).

(7) Where at the date of claim—

(a)the claimant—

(i)has been in his employment; or

(ii)after a continuous period of interruption exceeding 13 weeks, has resumed his employment; or

(iii)has changed the number of hours for which he is contracted to work; and

(b)the period of his employment or the period since he resumed his employment or the period since the change in the number of hours took place, as the case may be, is less than 9 weeks,

paragraph (8).

(8) In a case to which this paragraph applies, the Secretary of State shall require the claimant’s employer to furnish an estimate of the claimant’s average likely earnings for the period for which he will normally be paid and the claimant’s normal weekly earnings shall be determined by reference to that estimate.

(9) For the purposes of this regulation—

(a)the claimant’s earnings shall be calculated in accordance with Chapter III of this Part;

(b)“a period of short-time working” means a continuous period not exceeding 13 weeks during which the claimant is not required by his employer to be available to work the full number of hours normal in his case under the terms of his employment.

Normal weekly earnings of self-employed earners

17.  (1)  Subject to regulation 19 (periods to be disregarded), where a claimant’s income consists of earnings from employment as a self-employed earner, his normal weekly earnings shall be determined, subject to paragraph (2), by reference to his weekly earnings from that employment—

(a)except where sub-paragraph (b) applies, over a period of 26 weeks immediately preceding the week in which the date of claim falls; or

(b)where the claimant provides in respect of the employment a profit and loss account and, where appropriate, a trading account or a balance sheet or both, and the profit and loss account is in respect of a period of at least 6 months but not exceeding 15 months and that period terminates within the 12 months preceding the date of claim, over that period; or

(c)over such other period of weeks preceding the week in which the date of claim falls as may, in any particular case, enable his normal weekly earnings to be determined more accurately.

(2) In paragraph (1)(b)—

(a)“balance sheet” means a statement of the financial position of the employment disclosing its assets, liabilities and capital at the end of the period in question;

(b)“profit and loss account” means a financial statement showing the net profit or loss of the employment for the period in question; and

(c)“trading account” means a financial statement showing the revenue from sales, the cost of those sales and the gross profit arising during the period in question.

(3) Subject to regulation 19, where the claimant has been in employment as a self-employed earner for less than the period specified in paragraph (1)(a), his normal weekly earnings shall be determined by reference to an estimate of his likely weekly earnings over the 26 weeks next following the date of claim.

(4) For the purposes of this regulation, the claimant’s earnings shall be calculated in accordance with Chapter IV of this Part.

Normal weekly income other than earnings

18.  (1)  Subject to paragraph (2), a claimant’s normal weekly income which does not consist of earnings shall be determined by reference to his weekly income over a period of 26 weeks immediately preceding the week in which the date of claim falls or over such period immediately preceding that week as may, in any particular case, enable his normal weekly income to be determined more accurately.

(2) Where a claimant’s income consists of any payments made by a person, whether under a court order or not, for the maintenance of any member of his family, and those payments are made or due to be made at regular intervals, his normal weekly income shall be determined—

(a)if before the date of claim those payments are made at regular intervals, by reference to the normal weekly amount;

(b)if they are not so made, by reference to the average of such payments received in the 13 weeks immediately preceding the week in which the date of claim falls.

(3) For the purposes of this regulation, income other than earnings shall be calculated in accordance with Chapter V of this Part.

Periods to be disregarded

19.  For the purposes of ascertaining a claimant’s normal weekly earnings there shall be disregarded—

(a)for the purposes of regulation 16(1) (normal weekly earnings of employed earners), in the case of an employed earner—

(i)any period in the assessment period where the earnings of the claimant are irregular or unusual;

(ii)any period in the assessment period in which a bonus or commission to which regulation 16(6) applies is paid where that bonus or commission is in respect of a period longer than the period relating to the other earnings with which it is paid;

(b)in the case of a self-employed earner, any week or period of weeks in the assessment period during which no activities have been carried out for the purposes of the business,

and his normal weekly earnings shall be determined by reference to his weekly earnings in the remainder of that period and in such a case any reference in these Regulations to a claimant’s assessment period shall be construed as a reference to the latter period.

Calculation of weekly amount of income

20.  (1)  For the purposes of regulations 16 and 18 (normal weekly income), where the period in respect of which a payment is made—

(a)does not exceed a week, the weekly amount shall be the amount of that payment;

(b)exceeds a week, the weekly amount 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 equal to the number of days in the period in respect of which it is made.

(2) For the purposes of regulation 17 (normal weekly earnings of self-employed earners) the weekly amount of earnings of a claimant shall be determined—

(a)except where sub-paragraph (b) applies, by dividing his earnings received in the assessment period or, as the case may be, estimated for that period by the number equal to the number of weeks in that period;

(b)in a case where regulation 17(1)(b) applies, by multiplying his earnings relevant to the assessment period (whether or not received in that period) by 7 and dividing the product by the number equal to the number of days in that period.

CHAPTER IIIEMPLOYED EARNERS

Earnings of employed earners

21.  (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 holiday pay except any payable more than 4 weeks after termination of the employment;

(c)any payment by way of a retainer;

(d)any payment made by the claimant’s employer in respect of any 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;

(e)any award of compensation made under section 68(2) or 71(2)(a) of the Employment Protection (Consolidation) Act 1978(42) (remedies and compensa-tion for unfair dismissal);

(f)any such sum as is referred to in section 18(2) of the Social Security (Miscellaneous Provisions) Act 1977(43) (certain sums to be earnings for social security purposes);

(g)any statutory sick pay under Part I of the Social Security and Housing Benefits Act 1982(44) ;

(h)any statutory sick pay under Part II of the Social Security (Northern Ireland) Order 1982(45) ;

(i)any payment made by the claimant’s employer in respect of any Community Charge to which the claimant is subject.

(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.

(3) Where living accommodation is provided for a claimant by reason of his employment, the claimant shall be treated as being in receipt of weekly earnings of an amount equal to—

(a)where no charge is made in respect of the provision of that accommodation, £12;

(b)where a charge is made and that weekly charge is less than £12, the amount of the difference,

except that where the claimant satisfies the adjudication officer that the weekly value to him of the provision of that accommodation is an amount less than the amount in sub-paragraph (a) or (b), as the case may be, he shall be treated as being in receipt of that lesser value.

Calculation of net earnings of employed earners

22.  (1)  For the purposes of regulation 16 (normal weekly earnings of employed earners), 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 paragraph (2), be his net earnings.

(2) There shall be disregarded from a claimant’s net earnings, any sum, where applicable, specified in Schedule 2.

(3) For the purposes of paragraph (1), net earnings shall, except where paragraph (4) applies, 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 Social Security Act(46) ; and

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

(4) Where the earnings of a claimant are estimated under paragraph (8) of regulation 16 (normal weekly earnings of employed earners), 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 basic rate of tax in the year of assessment in which the claim was made less only the personal relief to which the claimant is entitled under sections 257(1), (6) and (7) and 259 of the Income and Corporation Taxes Act 1988(47) (personal relief) as is appropriate to his circumstances; but, if the assessment period is less than a year, the amount of the personal relief deductible under this sub-paragraph shall be calculated on a pro rata basis;

(b)an amount in respect of primary Class 1 contributions under the Social Security Act equivalent to an amount calculated by applying to those earnings the appropriate primary percentage applicable at the date of claim; and

(c)one-half of any sum payable by the claimant by way of a contribution towards an occuptional or personal pension scheme.

Calculation of bonus or commission

23.  Where a claimant’s earnings include a bonus or commission to which paragraph (6) of regulation 16 (normal weekly earnings of employed earners) applies that part of his earnings shall be calculated by aggregating any payments of bonus or commission and dividing that sum by 52, less—

(a)an amount in respect of income tax equivalent to an amount calculated by applying to that part of the earnings the basic rate of tax in the year of assessment in which the claim is made; and

(b)an amount in respect of primary Class 1 contributions under the Social Security Act equivalent to an amount calculated by applying to that part of the earnings the appropriate primary percentage applicable at the date of claim; and

(c)one-half of any sum payable by the claimant in respect of that part of the earnings by way of a contribution towards an occupational or personal pension scheme.

CHAPTER IVSELF-EMPLOYED EARNERS

Earnings of self-employed earners

24.  (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 paid under section 2 of the Employment and Training Act 1973(48) or section 2 of the Enterprise and New Towns (Scotland) Act 1990(49) 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) Where a claimant is employed in providing board and lodging accommodation for which a charge is payable, any income consisting of payments of such a charge shall only be taken into account under this Chapter as earnings if it forms a major part of the total of the claimant’s weekly income less any sums disregarded under Schedule 3 other than under paragraph 38 of that Schedule.

Calculation of net profit of self-employed earners

25.  (1)  For the purposes of regulation 17 (normal weekly earnings of self-employed earners), 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 or is that of a share fisherman within the meaning of the Social Security (Mariners' Benefits) Regulations 1975(50) , his share of the net profit derived from that employment less—

(i)an amount in respect of income tax and social security contributions payable under the Social Security Act calculated in accordance with regulation 22 (deduction of tax and contributions for self-employed earners); and

(ii)one-half of any qualifying premium payable.

(2) There shall be disregarded from a claimant’s net profit any sum, where applicable, specified in Schedule 2.

(3) For the purposes of paragraph (1)(a) the net profit of the employment shall, except where paragraph (4), (11) or (12) applies, be calculated by taking into account the earnings of the employment received in the assessment period less—

(a)subject to paragraphs (7) to (9), any expenses wholly and exclusively defrayed 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 Socal Security Act, calculated in accordance with regulation 26 (deduction of tax and contributions for self-employed earners); and

(c)one-half of any qualifying premium payable.

(4) For the purposes of paragraph (1)(a), in a case where the assessment period is determined under regulation 17(1)(b), the net profit of the employment shall, except where paragraph (11) applies, be calculated by taking into account the earnings of the employment relevant to that period (whether or not received in that period), less—

(a)subject to paragraphs (7) to (11), any expenses relevant to that period (whether or not defrayed in that period) and which were wholly and exclusively incurred for the purposes of that employment;

(b)an amount in respect of—

(i)income tax; and

(ii)social security contributions payable under the Social Security Act, calculated in accordance with regulation 26; and

(c)one-half of any qualifying premium payable.

(5) For the purposes of paragraphs (1)(b) the net profit of the employment shall, except where paragraphs (6), (11) or (12) applies, be calculated by taking into account the earnings of the employment received in the assessment period less, subject to paragraphs (7) to (9), any expenses wholly and exclusively defrayed in that period for the purposes of that employment.

(6) For the purposes of paragraph (1)(b), in a case where the assessment period is determined under regulation 18(1)(b), the net profit of the employment shall, except where paragraph (11) applies, be calculated by taking into account the earnings of the employment relevant to that period (whether or not received in that period) less, subject to paragraphs (7) to (9), any expenses relevant to that period (whether or not defrayed in that period) and which were wholly and exclusively incurred for the purposes of that employment.

(7) Subject to paragraph (8), no deduction shall be made under paragraphs (3)(a), (4)(a), (5) or (6), as the case may be, 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;

(f)any expenses incurred in providing business entertainment.

(8) A deduction shall be made under paragraphs (3)(a), (4)(a), (5) or (6), as the case may be, in respect of the repayment of capital on any loan used for—

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

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

(9) An adjudication officer shall refuse to make a deduction in respect of any expenses under paragraphs (3)(a), (4)(a), (5) or (6), as the case may be, where he is not satisfied that the expense has been defrayed or given the nature and the amount of the expense that it has been reasonably incurred.

(10) For the avoidance of doubt—

(a)a deduction shall not be made under paragraphs (3)(a), (4)(a), (5) or (6), as the case may be, 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 VAT paid over VAT 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.

(11) 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 Social Security Act, calculated in accordance with regulation 26 (deduction of tax and contributions for self-employed earners); and

(b)one-half of any qualifying premium payable.

(12) Where regulation 17(3) (normal weekly earnings of self-employed earners) applies—

(a)for the purposes of paragraph (1)(a), the net profit derived from the employment shall be calculated by taking into account the claimant’s estimated and, where appropriate, actual earnings from the employment, less the amount of the deductions likely to be made and, where appropriate, made under sub-paragraphs (a) to (c) of paragraph (3); or

(b)for the purposes of paragraph (1)(b), his share of the net profit of the employment shall be calculated by taking into account the claimant’s estimated and, where appropriate, his share of the actual earnings from the employment, less the amount of his share of the expenses likely to be deducted and, where appropriate, deducted under paragraph (5); or

(c)in the case of employment as a child-minder, the net profit of the employment shall be calculated by taking into account one-third of the claimant’s estimated earnings and, where appropriate, actual earnings from that employment, less the amount of the deductions likely to be made and, where appropriate, made under sub-paragraphs (a) and (b) of paragraph (11).

(13) 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.

(14) In this regulation “qualifying premium” means any premium or other consideration payable under an annuity contract for the time being approved by the Board of Inland Revenue as having for its main object the provision for the claimant of a life annuity in old age or the provision of an annuity for his partner or for any one or more of his dependants and in respect of which relief from income tax may be given.

Deduction of tax and contributions for self-employed earners

26.  (1)  The amount to be deducted in respect of income tax under regulation 25(1)(b)(i), (3)(b)(i), (4)(b)(i) or (11)(a)(i) (calculation of net profit of self-employed earners) shall be calculated on the basis of the amount of chargeable income, and as if that income were assessable to income tax at the basic rate of tax in the year of assessment in which the claim was made, less only the personal relief to which the claimant is entitled under sections 257(1) to (3) and 259(1) and (2) of the Income and Corporation Taxes Act 1988(51) (personal relief) as is appropriate to his circumstances; but, if the assessment period is less than a year 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 25(1)(b)(i), (3)(b)(ii), (4)(b)(ii) or (11)(a)(ii) shall be the total of—

(a)the amount of Class 2 contributions payable under section 7(1) or, as the case may be, (4) of the Social Security Act(52) at the rate applicable at the date of claim except where a claimant’s chargeable income is less than the amount specified in section 7(5) of that Act(53) (small earnings exception) for the tax year in which the date of claim falls; but if the assessment period is less than a year, the amount specified for that tax year shall be calculated on a pro rata basis; and

(b)the amount of Class 4 contributions (if any) which would be payable under section 9(2) of that Act(54) (Class 4 contributions) at the percentage rate applicable at the date of claim 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 in which the date of claim falls; but, if the assessment period is less than a year, those limits shall be calculated on a pro rata basis.

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

(a)except where sub-paragraph (b) or (c) applies, the earnings derived from the employment, less any expenses deducted under paragraph (3)(a), (4)(a), (5) or (6), as the case may be, of regulation 25;

(b)except where sub-paragraph (c)(iii) applies, in the case of employment as a child minder one-third of the earnings of that employment; or

(c)where regulation 17(3) applies (normal weekly earnings of self-employed earners)—

(i)in the case of a self-employed earner who is engaged in employment on his own account, the claimant’s estimated earnings from the employment, less the amount of the deductions likely to be made and, where appropriate, made under sub-paragraph (a) of paragraph (3) of regulation 25;

(ii)in the case of a self-employed earner whose employment is carried on in partnership or is that of a share fisherman within the meaning of the Social Security (Mariners' Benefits) Regulations 1975(55) , the claimant’s estimated and, where appropriate, his share of the actual earnings from the employment, less the amount of his share of the expenses likely to be deducted and, where appropriate, deducted under paragraph (4) of regulation 25;

(iii)in the case of employment as a child minder, one-third of the claimant’s estimated and, where appropriate, actual earnings from that employment.

CHAPTER VOTHER INCOME

Calculation of income other than earnings

27.  (1)  For the purposes of regulation 18 (normal weekly income other than earnings), the income of a claimant which does not consist of earnings to be taken into account shall, subject to paragraphs (2) to (5), be his gross income and any capital treated as income under regulation 28 (capital treated as income).

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

(3) Where the payment of any benefit under the benefit Acts(56) is subject to any deduction by way of recovery the amount to be taken into account under paragraph (1) shall be the gross amount payable.

(4) Any payment to which regulation 21(2) applies (payments not earnings) shall be taken into account as income for the purposes of paragraph (1).

(5) Where a loan is made to a person pursuant to arrangements made under section 1 of the Education (Student Loans) Act 1990(57) , or article 3 of the Education (Student Loans) (Northern Ireland) Order 1990(58) and that person ceases to be a student before the end of the academic year in respect of which the loan is payable, or, as the case may be, before the end of his course, a sum equal to the weekly amount apportionable under paragraph (2) of regulation 47 shall be taken into account under paragraph (1) for each week, in the period over which the loan fell to be apportioned, following the date on which that person ceases to be a student; but in determining the weekly amount apportionable under paragraph (2) of regulation 47 (treatment of student loans) so much of that paragraph as provides for a disregard shall not have effect.

Capital treated as income

28.  (1)  Any capital payable by instalments which are outstanding at the date of the claim shall, if the aggregate of the instalments outstanding and the amount of the claimant’s capital otherwise calculated in accordance with Chapter VI of this Part exceeds £16,000, be treated as income.

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

Notional income

29.  (1)  A claimant shall be treated as possessing income of which he has deprived himself for the purpose of securing entitlement to disability working allowance or increasing the amount of that benefit.

(2) 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 would become available to the claimant upon application being made, but which has not been acquired by him, shall be treated as possessed by the claimant.

(3) Any payment of income, other than a payment of income made under the Macfarlane Trust, the Macfarlane (Special Payments) Trust, the Macfarlane (Special Payments) (No. 2) Trust or the Independent Living Fund, made—

(a)to a third party in respect of a single claimant or a member of the family (but not a member of the third party’s family) shall be treated as possessed by that member of the family to the extent that it is used for his food, ordinary clothing or footwear, household fuel, or housing costs or is used for any personal community charge or collective community charge contribution for which that member is liable; and in this sub-paragraph the expression “ordinary clothing or footwear” means clothing or footwear for normal daily use, but does not include school uniforms, or clothing or footwear used solely for sporting activities;

(b)to a member of the family in respect of a single claimant or a third party (but not in respect of another member of that family) shall be treated as possessed by that member to the extent that it is kept by him or used by or on behalf of any member of the family.

(4) Where—

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

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

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

(5) Where a claimant is treated as possessing any income under any of paragraphs (1) to (3), the foregoing provisions of this Part shall apply for the purposes of calculating the amount of that income as if a payment had actually been made and as if it were actual income which he does possess.

(6) Where a claimant is treated as possessing any earnings under paragraph (4), the foregoing provisions of this Part shall apply for the purposes of calculating the amount of those earnings as if a payment had actually been made and as if they were actual earnings which he does possess, except that paragraph (3) of regulation 22 (calculation of net earnings of employed earners) shall not apply and his net earnings shall be calculated by taking into account those earnings which he is treated as possessing, less—

(a)an amount in respect of income tax equivalent to an amount calculated by applying to those earnings the basic rate of tax in the year of assessment in which the claim was made less only the personal relief to which the claimant is entitled under sections 257(1), (6) and (7) and 259 of the Income and Corporation Taxes Act 1988 (personal relief) as is appropriate to his circumstances; but, if the assessment period is less than a year, the amount of the personal relief deductible under this sub-paragraph shall be calculated on a pro rata basis;

(b)an amount in respect of primary Class 1 contributions under the Social Security Act equivalent to an amount calculated by applying to those earnings the appropriate primary percentage applicable at the date of claim; and

(c)one-half of any sum payable by the claimant by way of a contribution towards an occupational or personal pension scheme.

Modifications in respect of children and young persons

30.  (1)  Any capital of a child or young person payable by instalments which are outstanding at the date of claim shall, if the aggregate of the instalments outstanding and the amount of that child’s or young person’s other capital calculated in accordance with Chapter VI of this Part in like manner as for the claimant, except where otherwise provided, would exceed £3,000, be treated as income.

(2) Where the income of a child or young person, other than income consisting of any payment of maintenance whether under a court order or not, calculated in accordance with the foregoing provisions of this Part exceeds the sum specified as an allowance for that child or young person in Schedule 5 and regulation 51(5) (sum for child or young person who has income in excess to be nil) applies, that income shall not be treated as income of the claimant.

(3) Where the capital of a child or young person, if calculated in accordance with Chapter VI of this Part in like manner as for the claimant, except where otherwise provided, would exceed £3,000, any income of that child or young person shall not be treated as income of the claimant.

(4) Any income of a child or young person which is to be disregarded under Schedule 3 shall be disregarded in such manner as to produce the result most favourable to the claimant.

CHAPTER VICAPITAL

Capital limit

31.  For the purposes of section 22(6) of the Act as it applies to disability working allowance (no entitlement to benefit if capital exceeds prescribed amount), the prescribed amount is £16,000.

Calculation of capital

32.  (1)  For the purposes of Part II of the Act as it applies to disability working allowance, 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 and any income treated as capital under regulation 30 (income treated as capital).

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

Disregard of capital of child or young person

33.  The capital of a child or young person who is a member of the claimant’s family shall not be treated as capital of the claimant.

Income treated as capital

34.  (1)  Any amount by way of a refund of income tax deducted from profits or emoluments chargeable to income tax under Schedule D or E shall be treated as capital.

(2) Any holiday pay which is not earnings under regulation 21(1)(b) (earnings of employed earners) shall be treated as capital.

(3) Any charitable or voluntary payment which is not made or is not due to be made at regular intervals, other than a payment which is made under the Macfarlane Trust, the Macfarlane (Special Payments) Trust, the Macfarlane (Special Payments) (No. 2) Trust or the Independent Living Fund shall be treated as capital.

(4) Except any income derived from capital disregarded under paragraphs 1, 2, 4, 6, 13 or 26 to 30 of Schedule 4, any income derived from capital shall be treated as capital but only from the date it is normally due to be credited to the claimant’s account.

(5) In the case of employment as an employed earner, any advance of earnings or any loan made by the claimant’s employer shall be treated as capital.

(6) Any maintenance payment other than one to which regulation 18(2) (normal weekly income other than earnings) applies shall be treated as capital.

Calculation of capital in the United Kingdom

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

(a)except in a case to which sub-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 incumbrance secured on it;

(b)in the case of a National Savings Certificate—

(i)if purchased from an issue the sale of which ceased before 1st July last preceding the date of claim, 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

36.  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, cent. and the amount of any incumbrance secured on it.

Notional capital

37.  (1)  Subject to regulation 38, a claimant shall be treated as possessing capital of which he has deprived himself for the purpose of securing entitlement to disability working allowance or increasing the amount of that benefit except—

(a)where that capital is derived from a payment made in consequence of any personal injury and is placed on trust for the benefit of the claimant; or

(b)to the extent that the capital which he is treated as possessing is reduced in accordance with regulation 38 (diminishing notional capital rule).

(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 loan which would be obtainable only if secured against capital disregarded under Schedule 4,

any capital which would become available to the claimant upon application being made but which has not been acquired by him shall be treated as possessed by him.

(3) Any payment of capital, other than a payment of capital made under the Macfarlane Trust, the Macfarlane (Special Payments) Trust, the Macfarlane (Special Payments) (No. 2) Trust or the Independent Living Fund, made—

(a)to a third party in respect of a single claimant or a member of the family (but not a member of the third party’s family) shall be treated as possessed by that single claimant or member of the family to the extent that it is used for his food, ordinary clothing or footwear, household fuel, or housing costs or is used for any personal community charge or collective community charge contribution for which that member is liable; and in this sub-paragraph the expression “ordinary clothing or footwear” means clothing or footwear for normal daily use, but does not include school uniforms, or clothing or footwear used solely for sporting activities;

(b)to a single claimant or a member of the family in respect of a third party (but not in respect of another member of the family) shall be treated as possessed by that single claimant or member to the extent that it is kept by him or used on behalf of any member of the family.

(4) 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 32 (calculation of capital), be disregarded; and

(b)he shall, subject to paragraph (5), 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 Chapter shall apply for the purposes of calculating that amount as if it were actual capital which he does possess.

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

(6) Where a claimant is treated as possessing capital under any of paragraphs (1) to (4) the foregoing provisons of this Chapter shall apply for the purposes of calculating its amount as if it were actual capital which he does possess.

(7) For the avoidance of doubt a claimant is to be treated as possessing capital under paragraph (1) only if the capital of which he has deprived himself is actual capital and not capital which he is treated as possessing under regulation 39.

Diminishing notional capital rule

38.  (1)  Where a claimant is treated as possessing capital under regulation 37(1) (notional capital), the amount which he is treated as possessing—

(a)in the case of a benefit week which 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,

(b)in the case of a benefit 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 entitled to disability working allowance; and

(b)but for regulation 37, he would have been entitled to an additional amount of disability working allowance in that benefit 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 of disability working allowance to which the claimant would have been entitled; and

(b)if the claimant would, but for regulation 43(1) of the Housing Benefit (General) Regulations 1987(59) (notional capital), have been entitled to housing benefit or to an additional amount of housing benefit in respect of the benefit week in which the date of the last claim for disability working allowance falls, the amount (if any) which is equal to—

(i)in a case where no housing benefit is payable the amount to which he would have been entitled, or

(ii)in any other case, the amount equal to the additional amount of housing benefit to which he would have been entitled; and

(c)if the claimant would, but for regulation 33(1) of the Community Charge Benefits (General) Regulations 1989(60) (notional capital) have been entitled to community charge benefit or to an additional amount of community charge benefit in respect of the benefit week in which the date of the last claim for disability working allowance falls, the amount (if any) which is equal to—

(i)in a case where no community charge benefit is payable the amount to which he would have been entitled, or

(ii)in any other case, the amount equal to the additional amount of community charge benefit to which he would have been entitled.

(4) Subject to paragraph (5), for the purposes of paragraph (1)(b) the condition is that the claimant would have been entitled to disability working allowance in the relevant week but for regulation 37(1) and in such a case the amount shall be equal to the aggregate of—

(a)the amount of disability working allowance to which the claimant would have been entitled in the relevant week but for regulation 37(1); and

(b)if the claimant would, but for regulation 43(1) of the Housing Benefit (General) Regulations 1987 (notional capital), have been entitled to housing benefit or to an additional amount of housing benefit in respect of the benefit week in which the first day of the relevant week falls, the amount (if any) which is equal to—

(i)in a case where no housing benefit is payable the amount to which he would have been entitled, or

(ii)in any other case, the amount equal to the additional amount of housing benefit to which he would have been entitled; and

(c)if the claimant would, but for regulation 33(1) of the Community Charge Benefits (General) Regulations 1989 (notional capital) have been entitled to community charge benefit or to an additional amount of community charge benefit in respect of the benefit week in which the first day of the relevant week falls, the amount (if any) which is equal to—

(i)in a case where no community charge benefit is payable the amount to which he would have been entitled, or

(ii)in any other case, the amount equal to the additional amount of community charge benefit to which he would have been entitled.

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

(a)sub-paragraphs (a), (b) and (c) of paragraph (4) shall apply as if for the words “relevant week” there were substituted the words “relevant subsequent week”,

(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 20 or more weeks after—

(i)the first day of the relevant week;

(ii)in a case where there has been at least one re-determination in accordance with paragraph (5), the first day of the relevant subsequent week which last occurred;

(b)the claimant would have been entitled to disability working allowance but for regulation 37(1).

(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—

(a)“benefit week” has the meaning prescribed in regulations 16 (date of entitlement under an award) and 27 (family credit and disability working allowance) of the Social Security (Claims and Payments) Regulations 1987(61) except where it appears in paragraphs (3)(b) and (c) and (4)(b) and (c) where it has the meaning prescribed in regulation 2(1) of the Housing Benefit (General) Regulations 1987 (interpretation) or regulation 2(1) of the Community Charge Benefits (General) Regulations 1989 (interpretation) as the case may be;

(b)“relevant week” means the benefit week in which the capital in question of which the claimant has deprived himself within the meaning of regulation 37(1)—

(i)was for the first time taken into account for the purpose of determining his entitlement to disability working allowance; or

(ii)was taken into account on a subsequent occasion for that purpose other than in respect of either a benefit week to which paragraph (2) applies or a further claim to which paragraph (5) applies;

and, where more than one benefit week is identified by reference to heads (i) and (ii) of this sub-paragraph, the later or latest such benefit week;

(c)“relevant subsequent week” means the benefit week in which any award of disability working allowance in respect of the further claim referred to in paragraph (6)(a) would, but for regulation 37(1), have commenced, but it shall not be earlier than the twenty-seventh week after the week in which the existing amount took effect.

Capital jointly held

39.  Except where a claimant possesses capital which is disregarded under regulation 37(4) (notional capital), where a 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 and the foregoing provisions of this Chapter shall apply for the purpose of calculating the amount of capital which the claimant is treated as possessing as if it were actual capital which the claimant does possess.

Calculation of tariff income from capital

40.  (1)  Where the claimant’s capital calculated in accordance with this Chapter exceeds £3,000, it shall be treated as equivalent to a weekly income of £1 for each complete £250 in excess of £3,000 but not exceeding £16,000.

(2) Notwithstanding paragraph (1), where any part of the excess is not a complete £250 that part shall be treated as equivalent to a weekly income of £1.

(3) For the purposes of paragraph (1), capital includes any income treated as capital under regulation 34 (income treated as capital).

CHAPTER VIISTUDENTS

Interpretation

41.  In this Chapter, unless the context otherwise requires—

  • “a course of advanced education” means

    (a)

    a full-time course leading to a postgraduate degree or comparable qualification, a first degree or comparable qualification, a diploma of higher education, a higher national diploma, a higher national diploma of the Business & Technician Education Council or the Scottish Vocational Education Council or a teaching qualification; or

    (b)

    any other full-time course which is a course of a standard above ordinary national diploma, a national diploma of the Business & Technician Education Council or a national certificate of the Scottish Vocational Education Council, a general certificate of education (advanced level), a Scottish certificate of education (higher level) or a Scottish certificate of sixth year studies;

  • “contribution” means any contribution in respect of the income of any other person which a Minister of the Crown or an education authority takes into account in assessing the amount of the student’s grant and by which that amount is, as a consequence, reduced;

  • “course of study” means any full-time course of study or sandwich course whether or not a grant is made for attending it;

  • “covenant income” means the gross income payable to a student under a Deed of Covenant by a person whose income is, or is likely to be, taken into account in assessing the student’s grant or award;

  • “education authority” means a government department, a local education authority as defined in section 114(1) of the Education Act 1944(62) (interpretation), an education authority as defined in section 135(1) of the Education (Scotland) Act 1980(63) (interpretation), an education and library board established under Article 3 of the Education and Libraries (Northern Ireland) Order 1986(64) , any body which is a research council for the purposes of the Science and Technology Act 1965(65) or any analogous government department, authority, board or body of the Channel Islands, Isle of Man or any other country outside Great Britain;

  • “grant” means any kind of educational grant or award and includes any scholarship, studentship, exhibition, allowance or bursary but does not include a payment derived from funds made available by the Secretary of State for the purpose of assisting students in financial difficulties under section 100 of the Education Act 1944, sections 131 and 132 of the Education Reform Act 1988(66) or section 73 of the Education (Scotland) Act 1980;

“grant income” means—

(a)any income by way of a grant;

(b)any contribution which has been assessed whether or not it has been paid,

and any such contribution which is paid by way of a covenant shall be treated as part of the student’s grant income;

“last day of the course” means the date on which the last day of the final academic term falls in respect of the course in which the student is enrolled;

“period of study” means—

(a)

in the case of a course of study for one year or less, the period beginning with the start of the course and ending with the last day of the course;

(b)

in the case of a course of study for more than one year, in the first or, as the case may be, any subsequent year of the course, other than the final year of the course, the period beginning with the start of the course or, as the case may be, that year’s start and ending with either—

(i)

the day before the start of the next year of the course in a case where the student’s grant is assessed at a rate appropriate to his studying throughout the year, or, if he does not have a grant, where it would have been assessed at such a rate had he had one; or

(ii)

in any other case the day before the start of the normal summer vacation appropriate to his course;

(c)

in the final year of a course of study of more than one year, the period beginning with that year’s start and ending with the last day of the course;

“periods of experience” has the meaning prescribed in paragraph 1(1) of Schedule 5 to the Education (Mandatory Awards) Regulations 1991(67) ;

“sandwich course” has the meaning prescribed in paragraph 1(1) of Schedule 5 to the Education (Mandatory Awards) Regulations 1991;

“standard maintenance grant” means—

(a)

except where paragraph (b) applies, in the case of a student attending a course of study at the University of London or an establishment within the area comprising the City of London and the Metropolitan Police District, the amount specified for the time being in paragraph 2(2)(a) of Schedule 2 to the Education (Mandatory Awards) Regulations 1991 for such a student;

(b)

in the case of a student residing at his parent’s home, the amount specified in paragraph 3(2) thereof; and

(c)

in any other case, the amount specified in paragraph 2(2) other than in sub-paragraph (a) or (b) thereof;

“student” means a person aged less than 19 who is attending a full-time course of advanced education or, as the case may be, a person aged 19 or over who is attending a full-time course of study at an educational establishment; and for the purposes of this definition—

(a)

a person who has started on such a course shall be treated as attending it throughout any period of term or vacation within it, until the last day of the course or such earlier date as he abandons it or is dismissed from it;

(b)

a person on a sandwich course shall be treated as attending a full-time course of advanced education or, as the case may be, of study;

“year” in relation to a course, means the period of 12 months beginning on 1st January, 1st April or 1st September according to whether the academic year of the course in question begins in the spring, the summer or the autumn respectively.

Calculation of grant income

42.  (1)  The amount of a student’s grant income to be taken into account shall, subject to paragraph (2), be the whole of his grant income.

(2) There shall be disregarded from a student’s grant income any payment—

(a)intended to meet tuition fees or examination fees;

(b)intended to meet additional expenditure incurred by a disabled student in respect of his attendance on a course;

(c)intended to meet additional expenditure connected with term time residential study away from the student’s educational establishment;

(d)on account of the student maintaining a home at a place other than that at which he resides during his course;

(e)intended to meet the cost of books and equipment or, if not so intended, an amount equal to £257;

(f)intended to meet travel expenses incurred as a result of his attendance on the course.

(3) A student’s grant income, except any amount intended for the maintenance of dependants under Part 3 of Schedule 2 to the Education (Mandatory Awards) Regulations 1991(68) or intended for an older student under Part 4 of that Schedule, shall be apportioned—

(a)subject to paragraph (5), in a case where it is attributable to the period of study, equally between the weeks in that period;

(b)in any other case, equally between the weeks in the period in respect of which it is payable.

(4) Any amount intended for the maintenance of dependants or for an older student under the provisions referred to in paragraph (3) shall be apportioned equally over a period of 52 weeks commencing with the week in which the period of study begins.

(5) In the case of a student on a sandwich course, any periods of experience within the period of study shall be excluded and the student’s grant income shall be apportioned equally between the remaining weeks in that period.

Calculation of covenant income where a contribution is assessed

43.  (1)  Where a student is in receipt of income by way of a grant during a period of study and a contribution has been assessed, the amount of his covenant income to be taken into account shall be the whole amount of his covenant income less, subject to paragraph (3), the amount of the contribution.

(2) The weekly amount of the student’s covenant income shall be determined—

(a)by dividing the amount of income which falls to be taken into account under paragraph (1) by 52; and

(b)by disregarding from the resulting amount, £5.

(3) For the purposes of paragraph (1), the contribution shall be treated as increased by the amount, if any, by which the amount excluded under regulation 42(2)(f) (calculation of grant income) falls short of the amount included in the standard maintenance grant to meet travel expenses.

Covenant income where no grant income or no contribution is assessed

44.  (1)  Where a student is not in receipt of income by way of a grant the amount of his covenant income shall be calculated as follows—

(a)any sums intended for any expenditure specified in regulation 42(2)(a) to (d) (calculation of grant income), necessary as a result of his attendance on the course, shall be disregarded;

(b)any covenant income, up to the amount of the standard maintenance grant, which is not so disregarded shall be apportioned equally between the weeks of the period of study and there shall be disregarded from the covenant income to be so apportioned the amount which would have been disregarded under regulation 42(2)(e) had the student been in receipt of the standard maintenance grant; and

(c)the balance, if any, shall be divided by 52 and treated as weekly income of which £5 shall be disregarded.

(2) Where a student is in receipt of income by way of a grant and no contribution has been assessed, the amount of his covenant income shall be calculated in accordance with sub-paragraphs (a) to (c) of paragraph (1), except that—

(a)the value of the standard maintenance grant shall be abated by the amount of his grant income less an amount equal to the amount of any sums disregarded under regulation 42(2)(a) to (d); and

(b)the amount to be disregarded under paragraph (1)(b) shall be abated by an amount equal to the amount of any sums disregarded under regulation 42(2)(e).

Relationship with amounts to be disregarded under Schedule 3

45.  No part of a student’s covenant income or grant income shall be disregarded under paragraph 12 of Schedule 3 and any other income to which sub-paragraph (1) of that paragraph applies shall be disregarded thereunder only to the extent that the amount disregarded under regulation 43(2)(b) (calculation of covenant income where a contribution is assessed) or, as the case may be, regulation 44(1)(c) (covenant income where no grant income or no contribution is assessed) is less than £10.

Other amounts to be disregarded

46.  For the purposes of ascertaining income other than grant income and covenant income, any amounts intended for any expenditure specified in regulation 42(2) (calculation of grant income) necessary as a result of his attendance on the course shall be disregarded but only if, and to the extent that, the necessary expenditure exceeds or is likely to exceed the amount of the sums disregarded under regulation 42(2), 43(3) and 44(1)(a) or (b) (calculation of grant income and covenant income) on like expenditure.

Treatment of student loans

47.  (1)  A loan which is made to a student pursuant to arrangements made under section 1 of the Education (Student Loans) Act 1990(69) or article 3 of the Education (Student Loans) (Northern Ireland) Order 1990(70) shall be treated as income.

(2) In calculating the weekly amount of the loan to be taken into account as income—

(a)except where sub-paragraph (b) applies, the loan shall be apportioned equally between the weeks in the academic year in respect of which the loan is payable;

(b)in the case of a loan which is payable in respect of the final academic year of the course or, if the course is only of one academic year’s duration, in respect of that year, the loan shall be apportioned equally between the weeks in the period beginning with the start of the final academic year or, as the case may be, the single academic year and ending with the last day of the course,

and from the weekly amount so apportioned there shall be disregarded £10.

(3) Any loan for which a student is eligible in respect of an academic year under the arrangements mentioned in paragraph (1) but which has not been acquired by him shall be treated as possessed by him and paragraphs (1) and (2) shall apply accordingly; and for the purposes of this paragraph the loan for which a student is eligible is the maximum amount payable to him under those arrangements.

Disregard of contribution

48.  Where the claimant or his partner is a student and the income of one has been taken into account for the purpose of assessing a contribution to the student’s grant, an amount equal to the amount of the contribution shall be disregarded for the purpose of calculating the income of the one liable to make that contribution.

Disregard of tax refund

49.  Any amount by way of a refund of tax deducted from a student’s covenant income shall be disregarded in calculating the student’s income or capital.

Disregard of changes occurring during summer vacation

50.  In calculating a student’s income there shall be disregarded any change in the standard maintenance grant occurring in the recognised summer vacation appropriate to the student’s course, if that vacation does not form part of his period of study; from the date on which the change occurred to the end of that vacation.

PART VICALCULATION OF ENTITLEMENT

Determination of appropriate maximum disability working allowance

51.  (1)  Subject to paragraphs (2) to (7), the appropriate maximum disability working allowance shall be the aggregate of the following allowances—

(a)in respect of a single claimant, the allowance specified in column (2) of Schedule 5 at paragraph 1;

(b)in respect of a claimant who is a member of a married or unmarried couple, or who is a lone parent who is treated as responsible for a child or young person by virtue of regulation 9 (circumstances in which a person is treated as responsible or not responsible for another), the allowance specified in column (2) of Schedule 5 at paragraph 2;

(c)in respect of any child or young person for whom the claimant or his partner is treated as responsible by virtue of regulation 9 (circumstances in which a person is treated as responsible or not responsible for another), the allowance specified in column (2) of Schedule 5 at whichever description in paragraph 3 or 4 of column (1) fits the child or young person concerned.

(2) Where a claimant or, as the case may be, the partner of a claimant is married polygamously to two or more members of the same household, the maximum amount shall include, in respect of every such member but the first, an additional allowance which equals—

(a)in the case of a person aged less than 18 years, the allowance specified in column (2) of Schedule 5 at paragraph 4(a) in column (1); or

(b)in any other case, the allowance specified in column (2) of Schedule 5 at paragraph 4(b) in column (1).

(3) For the purposes of paragraph (2), a person shall not be treated as a member of the same household as someone to whom he is married polygamously if he would not be so treated in the case of a monogamous marriage.

(4) Where the capital of a child or young person, if calculated in accordance with Part V (income and capital) in like manner as for the claimant, except where otherwise provided, would exceed £3,000, the allowance in respect of that child or young person shall be nil.

(5) Where the weekly income of a child or young person, other than income consisting of any payment of maintenance whether under a court order or not, calculated in accordance with Part VI, exceeds the amount specified for that child or young person in Schedule 5, the allowance in respect of that child or young person shall be nil.

(6) Where a child or young person is, for the purposes of regulation 10(2)(a) (membership of the same household), a patient or in residential accommodation on account of physical or mental handicap or physical or mental illness and has been so accommodated for the 52 weeks immediately before the date of claim, the allowance in respect of that child or young person shall be nil.

(7) For the purposes of this regulation the amount of any disability working allowance and the age of any child or young person shall be determined by reference to the allowance specified in Schedule 5 and the age of the child or young person at the date on which the period under section 20(6F)(71) of the Act (period of award) begins.

Applicable amount of disability working allowance

52.  (1)  The applicable amount of disability working allowance for the purposes of section 20(6A) of the Act (conditions of entitlement to disability working allowance) shall, in the case of a claimant who is—

(a)single, be £39.95 per week;

(b)a member of a married or unmarried couple, or a lone parent, be £66.60 per week.

(2) For the purposes of section 20(6D) of the Act(72) (date on which applicable amount is to be determined) the prescribed date is the date on which the period under section 20(6F) of the Act (period of award) begins.

Entitlement to disability working allowance where income exceeds the applicable amount

53.  The prescribed percentage for the purpose of section 21(3B) of the Act(73) (percentage of excess of income over applicable amount which is deducted from maximum disability working allowance) shall be 70 per cent..

PART VIICHANGES OF CIRCUMSTANCES

Death of claimant

54.  (1)  Except as provided in paragraph (2), an award of disability working allowance shall cease to have effect upon the death of the claimant.

(2) Where a claimant dies and is survived by a partner who was the claimant’s partner at the date of claim, an award of disability working allowance made in the claimant’s favour shall have effect for its unexpired period as if originally made in favour of the partner.

Prevention of duplication of awards of family credit, disability working allowance and income support

55.  Where provision is made for the same child or young person in awards for overlapping periods, the first being an award of disability working allowance and the second an award of disability working allowance, family credit or income support, and at the start of the period of overlap that child or young person is no longer a member of the household of the claimant under the first award, the first award shall terminate with effect from the start of the period of overlap.

Overlapping awards of disability working allowance

56.  An award of disability working allowance which is made on review or appeal shall be treated as a relevant change of circumstances affecting any other award of disability working allowance which it overlaps.

PART VIIIENTITLEMENT TO FAMILY CREDIT AND DISABILITY WORKING ALLOWANCE

Prescribed circumstances for entitlement to disability working allowance

57.  For the purposes of section 20(6A)(d) of the Act (prescribed circumstances) where a claimant or a member of his family is entitled to family credit, he is entitled to disability working allowance, if—

(a)at the date of the claim for disability working allowance the award of family credit for him or a member of his family will expire within 28 days; and

(b)the claimant is or would be otherwise entitled to disability working allowance by virtue of these Regulations; and

(c)the claim for disability working allowance is made in respect of a period which commences immediately after the expiry of the award of family credit.

Amendment of the Family Credit (General) Regulations 1987

58.  (1)  The Family Credit (General) Regulations 1987(74) shall be amended as follows.

(2) After Part VI of the Family Credit (General) Regulations 1987 (changes of circumstances) there shall be inserted the following Part—

PART VIIENTITLEMENT TO FAMILY CREDIT AND DISABILITY WORKING ALLOWANCE

Prescribed circumstances for entitlement to family credit

52.  For the purposes of section 20(5)(bb) of the Act (prescribed circumstances) where a claimant or a member of his family is entitled to disability working allowance, he is entitled to family credit, if—

(a)at the date of the claim for family credit the award of disability working allowance for him or a member of his family will expire within 42 days; and

(b)the claimant is or would be otherwise entitled to family credit by virtue of these Regulations; and

(c)the claim for family credit is made in respect of a period which commences immediately after the expiry of the award of disability working allowance.

Signed by authority of the Secretary of State for Social Security.

Nicholas Scott

Minister of State,Department of Social Security

18th December 1991

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