The Income Support (General) Regulations 1987

PART I GENERAL

Citation and commencement

1.  These Regulations may be cited as the Income Support (General) Regulations 1987 and shall come into force on 11th April 1988.

Interpretation

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

“the Act” means the Social Security Act 1986;

“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;

“benefit week” has the meaning prescribed in paragraph 4 of Schedule 7 to the Social Security (Claims and Payments) Regulations 1987(5);

“claimant” means a person claiming income support;

“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(6) are charged;

“co-ownership scheme” means a scheme under which a dwelling is let by a housing association and the tenant, or his personal representative, will, under the terms of the tenancy agreement or of the agreement under which he became a member of the association, be entitled, on his ceasing to be a member and subject to any condition stated in either agreement, to a sum calculated by reference directly or indirectly to the value of the dwelling;

“couple” means a married or an unmarried couple;

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

“Crown tenant” means a person who occupies a dwelling under a tenancy or licence where the interest of the landlord belongs to Her Majesty in right of the Crown or to a government department or is held in trust for Her Majesty for the purposes of a government department, except (in the case of an interest belonging to Her Majesty in right of the Crown) where the interest is under the management of the Crown Estate Commissioners;

“dwelling occupied as the home” means the dwelling together with any garage, garden and outbuildings, normally occupied by the claimant as his home including any premises not so occupied which it is impracticable or unreasonable to sell separately, in particular, in Scotland, any croft land on which the dwelling is situated.

“earnings” has the meaning prescribed in regulation 35 or, as the case may be, 37;

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

“housing association” has the meaning assigned to it by section 1(1) of the Housing Associations Act 1985(7);

“housing benefit expenditure” means expenditure of a kind for which housing benefit may be granted;

“invalid carriage or other vehicle” means a vehicle propelled by petrol engine or by electric power supplied for use on the road and to be controlled by the occupant;

“liable relative” has the meaning prescribed in regulation 54;

“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;

“long tenancy” means a tenancy granted for a term of years certain exceeding twenty one years, whether or not the tenancy is, or may become, terminable before the end of that term by notice given by or to the tenant or by re-entry, forfeiture (or, in Scotland, irritancy) or otherwise and includes a lease for a term fixed by law under a grant with a covenant or obligation for perpetual renewal unless it is a lease by sub-demise from one which is not a long tenancy;

“mobility allowance” means an allowance under section 37A of the Social Security Act(8);

“mobility supplement” means any supplement under article 26A of the Naval, Military and Air Forces etc (Disablement and Death) Service Pensions Order 1983(9) including such a supplement by virtue of any other scheme or order or under Article 25A of the Personal Injuries (Civilians) Scheme 1983(10);

“net earnings” means such earnings as are calculated in accordance with regulation 36;

“net profit” means such profit as is calculated in accordance with regulation 38;

“non-dependant” has the meaning prescribed in regulation 3;

“non-dependant deduction” means a deduction that is to be made under regulation 17(e) and paragraph 11 of Schedule 3;

“nursing home” has the meaning prescribed in regulation 19(3);

“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 an unmarried couple, the other member of that couple;

(b)

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

“payment” includes a part of a payment;

“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 to the end;

(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, 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,

and, for the purposes of this definition, any period of attendance at the educational establishment which is outside the period of the course shall be treated as part of the period of study;

“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;

“polygamous marriage” means any marriage where there is more than one spouse and the ceremony of marriage as between the spouses took place under the law of a country which permits polygamy;

“relative” means close relative, grand-parent, grand-child, uncle, aunt, nephew or neice;

“relevant enactment” has the meaning prescribed in regulation 16(8)(a);

“remunerative work” has the meaning prescribed in regulation 5;

“residential accommodation” has the meaning prescribed in regulation 21(3);

“residential care home” has the meaning prescribed in regulation 19(3);

“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(11);

“student” has the meaning prescribed in regulation 61;

“supplementary benefit” means a supplementary pension or allowance under section 1 or 4 of the Supplementary Benefits Act 1976(12);

“terminal date” in respect of a claimant means the terminal date in his case for the purposes of regulation 7 of the Child Benefit (General) Regulations 1976(13);

“training allowance” means an allowance (whether by way of periodical grants or otherwise) payable—

(a)

out of public funds by a Government department or by or on behalf of the Manpower Services Commission;

(b)

to a person for his maintenance or in respect of a member of his family; and

(c)

for the period, or part of the period, during which he is following a course of training or instruction provided by, or in pursuance of arrangements made with, that department or approved by that department in relation to him or so provided or approved by or on behalf of that Commission,

but it does not include an allowance paid by any Government department to or in respect of a person by reason of the fact that he is following a course of full-time education or is training as a teacher;

“year of assessment” has the meaning prescribed in section 526(5) of the Income and Corporation Taxes Act 1970(14);

“young person” has the meaning prescribed in regulation 14.

(2) In these Regulations, unless the context otherwise requires, a reference—

(a) to a numbered Part is to the Part of these Regulations bearing that number;

(b) to a numbered regulation or Schedule is to the regulation in or Schedule to these Regulations bearing that number;

(c) in a regulation or Schedule to a numbered paragraph is to the paragraph in that regulation or Schedule bearing that number;

(d) in a paragraph to a lettered or numbered sub-paragraph is to the sub-paragraph in that paragraph bearing that letter or number.

(3) Unless the context requires otherwise, any reference to the claimant’s family or, as the case may be, to a member of his family, shall be construed for the purposes of these Regulations as if it included in relation to a polygamous marriage a reference to any partner and to any child or young person who is treated as the responsibility of the claimant or his partner, where that child or young person is a member of the claimant’s household.

Definition of non-dependant

3.—(1) In these Regulations, “non-dependant” means any person, except someone to whom paragraph (2) applies, who normally resides with a claimant.

(2) This paragraph applies to—

(a) any member of the claimant’s family;

(b) a child or young person who is living with the claimant but who is not a member of his household by virtue of regulation 16 (membership of the same household);

(c) a person who jointly occupies the claimant’s dwelling;

(d) subject to paragraph (3), any person who is liable to make payments in respect of his occupation of the dwelling to the claimant or the claimant’s partner;

(e) a person who lives with the claimant in order to care for him or a partner of his and who is engaged by a charitable or voluntary body (other than a public or local authority) which makes a charge to the claimant or his partner for the services provided by that person.

(3) A person, other than one to whom sub-paragraph (a) to (c) or (e) of paragraph (2) applies, who lives in board and lodging accommodation or a hostel within the meaning of regulation 20(2) (applicable amounts for persons in board and lodging accommodation and hostels)shall be a non-dependant.

(4) For the purposes of this regulation a person resides with another only if they share any accommodation except a bathroom, a lavatory or a communal area.

(5) In this regulation “communal area” means any area (other than rooms) of common access (including halls and passageways) and rooms of common use in sheltered accommodation.

PART II CONDITIONS OF ENTITLEMENT

Temporary absence from Great Britain

4.—(1) Where a claimant is entitled to income support for a period immediately preceding a period of temporary absence from Great Britain, his entitlement to income support shall continue during the first four weeks of that period of temporary absence only in the circumstances specified in paragraph (2).

(2) The circumstances in which a claimant’s entitlement to income support is to continue during the first four weeks of a temporary absence from Great Britain are that—

(a) the period of absence is unlikely to exceed 52 weeks; and

(b) while absent from Great Britain, the claimant continues to satisfy the other conditions of entitlement to income support; and

(c) any one of the following conditions applies—

(i) the claimant is not required to be available for employment under regulation 8(1) and Schedule 1 other than paragraph 5, 10, 18 to 20 of that Schedule (persons not required to be available for employment); or

(ii) he is not required to be available for employment under regulation 8(1) and paragraph 5 of Schedule 1 (incapacity for work) and his absence from Great Britain is for the sole purpose of receiving treatment from an appropriately qualified person for the incapacity by reason of which he is not required to be so available; or

(iii) he is in Northern Ireland; or

(iv) he is a member of a couple and he and his partner are both absent from Great Britain, and a premium referred to in paragraph 9, 10, 11 or 13 of Schedule 2 (applicable amounts) is applicable in respect of his partner.

Persons treated as engaged in remunerative work

5.—(1) Subject to the following provisions of this regulation, for the purposes of section 20(3)(c) of the Act (conditions of entitlement to income support), remunerative work is work in which a person is engaged, or, where his hours of work fluctuate, he is engaged on average, for not less than 24 hours a week being work for which payment is made or which is done in expectation of payment.

(2) The number of hours for which a person is engaged in work shall be determined—

(a) where no recognisable cycle has been established in respect of a person’s work, by reference to the number of hours or, where those hours are likely to fluctuate, the average of the hours, which he is expected to work in a week;

(b) where the number of hours for which he is engaged fluctuate, by reference to the average of hours worked over—

(i) if there is a recognisable cycle of work, the period of one complete cycle (including, where the cycle involves periods in which the person does no work, those periods but disregarding any other absences);

(ii) in any other case, the period of five weeks immediately before the date of claim or the date of review, or such other length of time as may, in the particular case, enable the person’s average hours of work to be determined more accurately.

(3) A person shall be treated as engaged in remunerative work during any period for which he is absent from work referred to in paragraph (1) if the absence is either without good cause or by reason of a recognised, customary or other holiday.

(4) A person who makes a claim and to whom or whose partner section 23 of the Act (trade disputes) applies shall, for the period of seven days following the date on which the stoppage of work due to a trade dispute at his or his partner’s place of work commenced or, if there is no stoppage, the date on which he or his partner first withdrew his labour in furtherance of a trade dispute, be treated as engaged in remunerative work.

(5) A person who was, or was treated as being, engaged in remunerative work and in respect of that work earnings to which regulation 35(1)(b) to (d) (earnings of employed earners) applies are payable shall be treated as being engaged in remunerative work for the period for which those earnings are taken into account in accordance with Part V.

Persons not treated as engaged in remunerative work

6.  A person shall not be treated as engaged in remunerative work if—

(a) he is mentally or physically disabled and his earning capacity is, by reason of that disability, reduced to 75 per cent or less of what he would, but for that disability, be reasonably expected to earn;

(b) he is engaged in child minding in his home;

(c) he is engaged by a charity 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 40(2) and paragraph 2 of Schedule 9 (sums to be disregarded in the calculation of income other than earnings);

(d) he is engaged on a scheme for which a training allowance is being paid; or

(e) subject to regulation 5(4) (persons treated as engaged in remunerative work) he is a person to whom section 23 of the Act (trade disputes) applies; or

(f) he is a person who is not required to be available for employment because regulation 8 and paragraph 4 of Schedule 1 (person caring for another) applies to him.

Meaning of employment

7.  For the purposes of section 20(3)(d) of the Act (conditions of entitlementto income support) only work in employed earner’s employment within the meaning of the Social Security Act—

(a) which the claimant can reasonably be expected to do;

(b) for which payment is made or which is done in expectation of payment; and

(c) for which he would normally be engaged for not less than 24 hours a week or, if he is mentally or physically disabled, such lesser number of hours as, having regard to his disability, he is usually capable of working,

shall be treated as employment.

Persons not required to be available for employment

8.—(1) A person, other than one to whom regulation 10(1)(h) applies (circumstances in which a person is to be treated as available for employment), to whom any paragraph of Schedule 1 (persons not required to be available for employment) applies in any week shall not be required to be available for employment in that week.

(2) A person, other than one to whom regulation 10(1)(h) applies, to whom none of the provisions of Schedule 1 other than paragraph 5 applies, shall, where—

(a) a medical practitioner to whom the question of that person’s incapacity for work by reason of some disease or bodily or mental disablement has been referred under regulation 8 of the Social Security (Adjudication) Regulations 1986(15) (medical references) is of the opinion that the person is not so incapable; and

(b) that person’s medical practitioner continues to supply evidence of his incapacity for work in accordance with regulation 2 of the Social Security (Medical Evidence) Regulations 1976(16) (evidence of incapacity for work); and

(c) that person has made and is pursuing an appeal against the determination of an adjudication officer that he is not so incapable; and

(d) that person, were he required to be available for employment, would not be treated as so available under regulation 9(1) (persons treated as available for employment),

not be required to be available for employment pending the determination of his appeal.

Persons treated as available for employment

9.—(1) Except in a case to which regulation 10 (circumstances in which claimants are not to be treated as available for employment) applies, a claimant shall be treated as available for employment if, and only if—

(a) he is available to be employed within the meaning of section 17(1)(a)(i) of the Social Security Act(17) or Regulations made under it (requirement to be available to be employed for the purposes of unemployment benefit) in employment to which regulation 7 applies (meaning of employment); or

(b) he is normally engaged for less than the number of hours prescribed in paragraph (c) of regulation 7 in respect of him in employment to which that regulation applies, and he is available, within the meaning of section 17(1)(a)(i) or Regulations made under it, for such further number of hours which would, in aggregate with the number of hours for which he is normally engaged, be not less than the number of hours prescribed in paragraph (c) of regulation 7 for his case; or

(c) he satisfies the conditions in paragraph (2) and is attending—

(i) a course of education at an establishment recognised by the Secretaryof State as being, or as comparable to, a school or college; or

(ii) a course of training or instruction analogous to a course for which a training allowance would be payable,

and, in either case, he is prepared to terminate the course immediately a suitable vacancy becomes available to him.

(2) the conditions referred to in paragaph (1)(c) are that either—

(a) the claimant was, for a continuous period of not less than three months falling immediately before the commencement date,—

(i) in receipt of a qualifying benefit; or

(ii) on a course of training or instruction organised by or on behalf of the Manpower Services Commission as part of the Youth Training Scheme; or

(b) during the period of six months falling immediately before the commencement date the claimant was—

(i) for a period, or periods in aggregate, of not less than three months in receipt of a qualifying benefit or on a course of training or instruction organised by or on behalf of the Manpower Services Commission as part of the Youth Training Scheme; and

(ii) after the period referred to in head (i) of this sub-paragraph or, in the case of periods in aggregate, after the first such period and throughout the remainder of the six months for which that head did not apply to him, engaged in appropriate work;

and that the period of three months referred to in sub-paragraph (a) or, as the case may be, the period of six months referred to in sub-paragraph (b) fell wholly after the terminal date.

(3) In this regulation—

“appropriate work” means remunerative work for the purpose of section 20(3)(c) of the Act (conditions of entitlement to income support) or other work the emoluments from which are such as to disentitle the person engaged in it from a qualifying benefit;

“commencement date” means the date on which the claimant first attended the course of education or course of training or instruction;

“course” means a course in the pursuit of which the time spent receiving instruction or tuition, undertaking supervised study, examination or practical work or taking part in any exercise, experiment or project for which provision is made in the curriculum of the course does not, subject to paragraph (4), exceed 21 hours a week;

“qualifying benefit” means unemployment benefit or sickness benefit under the Social Security Act(18) or, in the case of a claimant who is required to be available for employment under section 20(3)(d) of the Act (conditions of entitlement to income support) or who is not so required under paragraph 5 of Schedule 1 (persons not required to be available by reason of sickness or incapacity), income support.

(4) In calculating the time spent in pursuit of a course for the purpose of this regulation, no account shall be taken of time occupied by meal breaks or spent on unsupervised study, whether undertaken on or off the premises of the educational establishment or place of instruction or training.

Circumstances in which claimants are not to be treated as available for employment

10.—(1) A claimant shall not be treated as available for employmentif he is a person to whom any one of the following sub-paragraphs applies—

(a) after a situation in any suitable employment has been properly notified to him as vacant or about to become vacant he has without good cause refused or failed to apply for that situation or refused to accept that situation when offered to him, and that situation is still vacant or open to application;

(b) he has neglected to avail himself of a reasonable opportunity of suitable employment and that opportunity is still available to him;

(c) he has failed to avail himself of a reasonable opportunity of short-term work which is available in the area in which he lives, and—

(i) he is aged 18 or over but under 45;

(ii) his partner, if any, is aged under 45;

(iii) there is no child or young person who is a member of his family;

(iv) his partner or, as the case may be, the claimant herself is not pregnant; and

(v) neither he nor his partner, if any, is mentally or physically disabled;

(d) he has placed restrictions on the nature, hours, rate of remuneration or locality or other conditions of employment which he is prepared to accept and as a consequence of those restrictions he has no reasonable prospects of securing employment; but this sub-paragraph shall not apply where—

(i) he is prevented from having reasonable prospects of securing employment consistent with those restrictions only as a result of adverse industrial conditions in the locality or localities concerned which may reasonably be regarded as temporary, and, having regard to all the circumstances, personal and other, the restrictions which he imposes are reasonable; or

(ii) the restrictions are nevertheless reasonable in view of his physical condition; or

(iii) the restrictions are nevertheless reasonable having regard both to the nature of his usual occupation and also to the time which has elapsed since he became unemployed;

(e) having failed to comply with a written notice given or sent to him by or on behalf of the Secretary of State or the Manpower Services Commission requesting him to report at a specified time, place and date to an officer of the Department of Health and Social Security, the Department of Employment, the Manpower Services Commission or a local education authority for an interview in connection with his prospects of employment, he fails without good cause to comply with the requirements of a further notice given or sent to him within 14 days of the date specified in the first notice by or on behalf of the Secretary of State or, as the case may be, the Manpower Services Commission and requesting him to report as aforesaid at a time, place and date specified in the further notice for the purpose of such an interview;

(f) he has been disallowed unemployment benefit on the ground that he failed to claim in the manner prescribed by regulation 4 of the Social Security (Claims and Payments) Regulations 1987(19) (making a claim for benefit) by virtue of the fact that the form approved by the Secretary of State for the purpose of claiming was not duly completed so far as it related to his availability for employment; or

(g) he is a share fisherman within the meaning of the Social Security (Mariners' Benefits) Regulations 1975(20) who is not entitled to unemployment benefit under the Social Security Act because he has failed to satisfy the additional condition for receipt of that benefit in paragraph (5) or (8) of regulation 8 of those Regulations (that he performed no work as a sea-going or on-shore share fisherman and that he has not neglected to avail himself of a reasonable opportunity of employment as a fisherman);

(h) he is a student during the period of study other than one to whom paragraph 1, 2, 7 or 20 of Schedule 1 applies (persons not required to be available for employment) but in the case of paragraph 20 only where the student is a person to whom regulation 70(3)(a) applies (certain persons from abroad).

(2) A determination that a claimant is not to be treated as available for employment—

(a) under paragraph (1)(a), shall apply for a period not exceeding—

(i) the period during which the situation in question remains vacant; or

(ii) 13 weeks,

whichever is the shorter;

(b) under paragraph (1)(b), shall apply for a period not exceeding—

(i) the period during which the opportunity is still available to him; or

(ii) 13 weeks,

whichever is the shorter;

(c) under paragraph (1)(c)—

(i) shall not apply until the claimant has been given 14 days' notice in writing and that period has expired, and then

(ii) shall apply for a period not exceeding the period during which the opportunity is still available to him or, if shorter, the period of 13 weeks;

(d) under paragraph (1)(d), shall apply for so long as the claimant has no reasonable prospect of employment as a consequence of the restrictions referred to in that paragraph;

(e) under paragraph (1)(e), shall apply on the day specified in the further notice and any subsequent day falling before the day on which the claimant reports to an officer of the Department of Health and Social Security, the Department of Employment, the Manpower Services Commission or a local education authority at the place specified in the notice and there attends an interview in connection with his prospects of employment or before the day on which the Secretary of State or, as the case may be, the Manpower Services Commission rescinds the further notice, whichever event first occurs;

(f) under paragraph (1)(f), shall apply for so long as the claimant fails to claim in the manner referred to in that paragraph;

(g) under paragraph (1)(g) or (h), shall apply for so long as that paragraph continues to apply to him.

(3) In this regulation—

(a) employment shall not be deemed to be employment suitable in the case of any claimant if it is employment to which subsection (4) of section 20 of the Social Security Act (employment not to be deemed suitable for purposes of that section) applies;

(b) “properly notified” means notified by an officer acting on behalf of the Secretary of State, or by the Manpower Services Commission, a local education authority or some other recognised agency, or by or on behalf of an employer.

Registration for employment

11.—(1) Subject to paragraph (2), a claimant who—

(a) is aged less than 18; and

(b) is required to be available for employment for the purposes of section 20(3)(d)(i) of the Act (conditions of entitlement to income support);

must also be registered for employment in accordance with paragraph (3).

(2) A claimant other than one to whom regulation 10(1)(h) (circumstances in which claimants are not to be treated as available for employment) applies and who would, but for this paragraph, be required to be registered for employment in accordance with paragraph (3), shall not be required so to register for employment if—

(a) a medical practitioner to whom the question of the claimant’s incapacity for work by reason of some disease or bodily or mental disablement has been referred under regulation 8 of the Social Security (Adjudication) Regulations 1986(21) (medical references) is of the opinion that he is not so incapable; and

(b) the claimant’s medical practitioner continues to supply evidence of his incapacity for work in accordance with regulation 2 of the Social Security (Medical Evidence) Regulations 1976(22) (evidence of incapacity); and

(c) the claimant has made and is pursuing an appeal against the determination of an adjudication officer that he is not so incapable.

(3) A claimant to whom paragraph (1) applies shall, except where the Secretary of State decides otherwise, be registered for employment by registering with the Manpower Services Commission or a local education authority.

Relevant Education

12.  For the purposes of these Regulations a child or young person is to be treated as receiving relevant education if, and only if—

(a) he is receiving full-time education not being advanced education for the purposes of section 2 of the Child Benefit Act 1975(23) (meaning of child); or

(b) although he is not receiving such full-time education he is treated as a child for the purposes of that section of that Act,

except that, in a case to which paragraph (b) applies, he shall not be treated as receiving relevant education beyond the terminal date in his case.

Circumstances in which persons in relevant education are to be entitled to income support

13.—(1) Notwithstanding that a person is to be treated as receiving relevant education under regulation 12 (relevant education) he shall, if paragraph (2) applies to him and he satisfies the other conditions of entitlement to income support, be entitled to income support.

(2) This paragraph applies to a young person who—

(a) is the parent of a child for whom he is treated as responsible under regulation 15 (circumstances in which a person is to be treated as responsible or not responsible for another) and who is treated as a member of his household under regulation 16 (circumstances in which a person is to be treated as being or not being a member of the household); or

(b) is severely mentally or physically handicapped and because of that he would be unlikely, even if he were available for employment, to obtain employment within the next 12 months; or

(c) has no parent nor any person acting in the place of his parents; or

(d) is living away from and is estranged from his parents or any person acting in place of his parents; or

(e) is living away from his parents and any person acting in the place of his parents in a case where his parents are or, as the case may be, that person is unable financially to support him and—

(i) chronically sick or mentally or physically disabled; or

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

(iii) prohibited from entering or re-entering Great Britain; or

(f) is attending a course of education to which regulation 9 (persons treated as available for employment) applies and satisfies the other conditions of that regulation; or

(g) has completed or terminated such a course and while attending that course satisfied the other conditions of that regulation; or

(h) he is a person to whom paragraph 16 of Schedule 1 (refugees not required to be available for employment) applies.

(3) In this regulation—

(a) any reference to a person acting in the place of a young person’s parents includes—

(i) for the purposes of paragraph (2)(c) and (d), a reference to a local authority or voluntary organisation where the young person is in their care under a relevant enactment, or to a person with whom the young person is boarded out by a local authority or voluntary organisation whether or not any payment is made by them; and

(ii) for the purposes of paragraph (2)(e), any person with whom the young person is so boarded out;

(b) “chronically sick or mentally or physically disabled” means, in relation to a person to whom that expression refers, a person—

(i) in respect of whom the condition specified in paragraph 12(1) of Schedule 2 (additional condition for the higher pensioner and disability premiums) is satisfied; or

(ii) in respect of whom an amount under article 26 of the Naval, Military and Air Forces etc (Disablement and Death) Service Pensions Order 1983(24) (provision of expenses in respect of appropriate aids for disabled living) is payable in respect of the cost of providing a vehicle, or maintaining a vehicle to a disabled person; or

(iii) who is substantially and permanently disabled.

PART III MEMBERSHIP OF THE FAMILY

Persons of a prescribed description

14.—(1) Subject to paragraph (2), a person of a prescribed description for the purposes of section 20(11) of the Act as it applies to income support (definition of the family) and section 23(1) and 3 of the Act (trade disputes) is a person aged 16 or over but under 19 who is treated as a child for the purposes of section 2 of the Child Benefit Act 1975 (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 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.

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

15.—(1) Subject to the following provisions of this regulation a person shall be treated as responsible for a child or young person for whom he has primary responsibility.

(2) Where a child or young person spends equal amounts of time in different households, or where there is a question as to who has primary responsibility for him, the child or young person shall be treated for the purposes of paragraph (1) as being the primary responsibility of—

(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) Where regulation 16(6) (circumstances in which a person is to be treated as being or not being a member of the household) applies in respect of a child or young person, that child or young person shall be treated as the responsibility of the claimant for that part of the week for which he is under that regulation treated as being a member of the claimant’s household.

(4) Except where paragraph (3) applies, for the purposes of these Regulations a child or young person shall be treated as the responsibility of only one person in any benefit week and any person other than the one treated as responsible for the child or young person under this regulation shall be treated as not so responsible.

Circumstances in which a person is to be treated as being or not being a member of the household

16.—(1) Subject to paragraphs (2) to (5), the claimant and any partner and, where the claimant or his partner is treated as responsible under regulation 15 (circumstances in which a person is to be treated as responsible or not responsible for another) for a child or young person, that child or young person and any child of that child or young person shall be treated as members of the same household where any of them is absent from the dwelling occupied as his home.

(2) Paragraph (1) shall not apply in respect of any person referred to therein who is not treated as occupying a dwelling as his home because he fails to satisfy the conditions in sub-paragraph (8) of paragraph 4 of Schedule 3 (housing costs).

(3) Paragraph (1) shall not apply in respect of any member of a couple or of a polygamous marriage where—

(a) one, both or all of them are patients detained in a hospital provided under section 4 of the National Health Service Act 1977(25) (special hospitals) or section 90(1) of the Mental Health (Scotland) Act 1984(26) (provision of hospitals for patients requiring special security); or

(b) one, both or all of them are detained in custody pending trial or sentence upon conviction or whilst serving a sentence imposed by a court; or

(c) one of them is in accommodation and, if the accommodation is accommodation provided under the provisions referred to in paragraph (a) of the definition of residential accommodation in regulation 21(3) (special cases), the couple, or as the case may be, the members of the polygamous marriage are not entitled to income support and they have insufficient income to meet the minimum charge for that accommodation; or

(d) the claimant is abroad and does not satisfy the conditions of regulation 4 (temporary absence from Britain); or

(e) one of them is permanently in residential accommodation or a residential care home or a residential nursing home.

(4) A child or young person shall not be treated as a member of the claimant’s household where he is—

(a) boarded out with the claimant or his partner under a relevant enactment; or

(b) boarded out with the claimant or his partner prior to adoption; or

(c) placed for adoption with the claimant or his partner pursuant to a decision under the Adoption Agencies Regulations 1983(27) or the Adoption Agencies (Scotland) Regulations 1984(28).

(5) Subject to paragraph (6), paragraph (1) shall not apply to a child or young person who is not living with the claimant and he—

(a) has been continuously absent from Great Britain for a period of more than four weeks commencing—

(i) where he went abroad before the date of claim for income support, with that date;

(ii) in any other case, with the date on which he went abroad; or

(b) has been an in-patient or in residential accommodation for a continuous period of more than 12 weeks commencing—

(i) where he became an in-patient or, as the case may be, entered that accommodation before the date of the claim for income support, with that date; or

(ii) in any other case, with the date on which he became an in-patient or entered that accommodation,

and, in either case, has not been in regular contact with either the claimant or any member of the claimant’s household; or

(c) is in the care of a local authority under a relevant enactment; or

(d) has been boarded out with a person other than the claimant prior to adoption; or

(e) has been placed for adoption pursuant to a decision under the Adoption Agencies Regulations 1983 or the Adoption Agencies (Scotland) Regulations 1984; or

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

(6) A child or young person to whom any of the circumstances mentioned in sub-paragraphs (c) or (f) of paragraph (5) applies shall be treated as being a member of the claimant’s household only for that part of any benefit week where that child or young person lives with the claimant.

(7) Where a child or young person for the purposes of attending the educational establishment at which he is receiving relevant education is living with the claimant or his partner and neither one is treated as responsible for that child or young person that child or young person shall be treated as being a member of the household of the person treated as responsible for him and shall not be treated as a member of the claimant’s household.

(8) In this regulation—

(a) “relevant enactment” means the Army Act 1955(29), the Air Force Act 1955(30), the Naval Discipline Act 1957(31), the Adoption Act 1958(32), the Matrimonial Proceedings Children Act 1958(33), the Children Act 1958(34), the Social Work (Scotland) Act 1968(35), the Family Law Reform Act 1969(36), the Children and Young Persons Act 1969(37), the Matrimonial Causes Act 1973(38), the Guardianship Act 1973(39), the Children Act 1975(40), the Domestic Proceedings and Magistrates' Courts Act 1978(41), the Adoption (Scotland) Act 1978(42), the Child Care Act 1980(43), and the Foster Children Act 1980(44);

(b) “voluntary organisation” has the meaning assigned to it in the Child Care Act 1980 or, in Scotland, the Social Work (Scotland) Act 1968.

PART IV APPLICABLE AMOUNTS

Applicable amounts

17.  Subject to regulations 18 to 22 and 70 (applicable amounts in other cases and reductions in applicable amounts and urgent cases), a claimant’s weekly applicable amount shall be the aggregate of such of the following amounts as may apply in his case:

(a) an amount in respect of himself or, if he is a member of a couple, an amount in respect of both of them, determined in accordance with paragraph 1 (1), (2) or (3), as the case may be, of Schedule 2;

(b) an amount determined in accordance with paragraph 2 of Schedule 2 in respect of any child or young person who is a member of his family, except a child or young person whose capital, if calculated in accordance with Part V in like manner as for the claimant, except where otherwise provided, would exceed £3,000;

(c) if he is a member of a family of which at least one member is a child or young person, an amount determined in accordance with Part II of Schedule 2 (family premium);

(d) the amount of any premiums which may be applicable to him, determined in accordance with Parts III and IV of Schedule 2 (premiums);

(e) any amounts determined in accordance with Schedule 3 (housing costs) which may be applicable to him in respect of mortgage interest payments or such other housing costs as are prescribed in that Schedule.

Polygamous marriages

18.  Subject to regulations 19 to 22 and 70 (applicable amounts in other cases and reductions in applicable amounts and urgent cases), where a claimant is a member of a polygamous marriage his weekly applicable amount shall be the aggregate of such of the following amounts as may apply in his case:

(a) the highest amount applicable to him and one of his partners determined in accordance with sub-paragraph (3) of paragraph 1 of Schedule 2 as if he and that partner were a couple;

(b) an amount equal to the difference between the amounts specified in sub-paragraphs (3) (b) and (1) (c) of paragraph 1 of Schedule 2 in respect of each of his other partners;(c)an amount determined in accordance with paragraph 2 of Schedule 2 (applicable amounts) in respect of any child or young person for whom he or a partner of his is responsible and who is a member of the same household except a child or young person whose capital, if calculated in accordance with Part V in like manner as for the claimant, except where otherwise provided, would exceed £3,000;

(d) if he or another partner of the polygamous marriage is responsible for a child or young person who is a member of the same household, the amount specified in Part II of Schedule 2 (family premiums);

(e) the amount of any premiums which may be applicable to him determined in accordance with Parts III and IV of Schedule 2 (premiums);

(f) any amounts determined in accordance with Schedule 3 (housing costs) which may be applicable to him in respect of mortgage interest payments or such other housing costs as are prescribed in that Schedule.

Applicable amounts for persons in residential care and nursing homes

19.—(1) Subject to regulation 22 (reduction of applicable amounts) where—

(a) the claimant lives in a residential care home or nursing home; or

(b) if he is a member of a family—

(i) he and the members of his family live in such a home; or

(ii) he and the members of his family normally live in such a home and, where there is a period of temporary absence from the home of any member of the family, provided that the claimant or his partner lives in the home during that absence,

his weekly applicable amount shall except in a case to which regulation 21 (applicable amounts in special cases) or Part II of Schedule 4 (persons to whom regulation 19 does not apply) applies, be calculated in accordance with Part I of that Schedule.

(2) Where—

(a) a claimant immediately before 27th July 1987 was in receipt of supplementary benefit as a boarder in a residential care home which was not required to register under Part I of the Registered Homes Act 1984 because section 1(4) of that Act (registration) applied to it; and

(b) immediately before 11th April 1988 his appropriate amount fell to be determined, by virtue of regulation 3 of the Supplementary Benefit (Requirements and Resources) Amendment Regulations 1987(45) (transitional provisions), in accordance with paragraph 1 of Schedule 1A to the Supplementary Benefit Requirements Regulations 1983(46) (maximum amounts for residential care homes) or would have been so determined but for his temporary absence from the home,

his weekly applicable amount shall be calculated in accordance with Part I of Schedule 4 (applicable amounts of persons in residential care homes or nursing homes) as if the home was a residential care home within the meaning of this regulation if, and for so long as, the claimant remains resident in the same home apart from any temporary absence, and the home continues to provide accommodation with board and personal care for the claimant by reason of his old age, disablement, past or present dependence on alcohol or drugs or past or present mental disorder.

(3) In this regulation and Schedule 4—

• “nursing home” means—

  (a)

  premises which are a nursing home or mental nursing home within the meaning of the Registered Homes Act 1984(47) and which are either registered under Part II of that Act or exempt from registration under section 37 thereof (power to exempt Christian Science Homes); or

  (b)

  any premises used or intended to be used for the reception of such persons or the provision of such nursing or services as is mentioned in any paragraph of subsection (1) of section 21 or section 22 (1) of the Registered Homes Act 1984 (meaning of nursing home or mental nursing home) or, in Scotland, as are mentioned in section 10 (2) of the Nursing Homes Registration (Scotland) Act 1938(48) (interpretation) and which are maintained or controlled by a body instituted by special Act of Parliament or incorporated by Royal Charter;

  (c)

  in Scotland,

  (i)

  premises which are a nursing home within the meaning of section 10 of the Nursing Homes Registration (Scotland) Act 1938 which are either registered under that Act or exempt from registration under section 6 or 7 thereof (general power to exempt homes and power to exempt Christian Science Homes); or

  (ii)

  premises which are a private hospital within the meaning of section 12 of the Mental Health (Scotland) Act 1984(49) (private hospitals), and which are registered under that Act;

• “residential care home” means an establishment—

  (a)

  registered under Part I of the Registered Homes Act 1984; or

  (b)

  which provides residential accommodation with both board and personal care for persons in need of personal care by reason of old age, disablement, past or present dependence on alcohol or drugs, or past or present mental disorder for fewer than four persons, excluding persons carrying on or intending to carry on the home or employed or intended to be employed there and their relatives, but only if—

  (i)

  at least two employed or self-employed persons (referred to in this paragraph as responsible persons) are each engaged in providing personal care to residents of the establishment for a minimum of 35 hours a week and those persons are not engaged in any other remunerative work; and

  (ii)

  each of those responsible persons has at least one year’s relevant experience in caring for persons in need of the category of personal care for which the establishment provides such care; and

  (iii)

  at least one responsible person is available throughout the day to care for residents of the establishment; and

  (iv)

  at least one responsible person is on call throughout the night to care for residents of the establishment; and

  (v)

  all residents have free access to the premises at all times; or

  (c)

  run by the Abbeyfield Society including all bodies corporate or incorporate which are affiliated to that Society; or

  (d)

  managed or provided by a body incorporated by Royal Charter or constituted by Act of Parliament other than a local social services authority; or

  (e)

  in Scotland, which is a home registered under section 61 of the Social Work (Scotland) Act 1968(50) or is an establishment provided by a housing association registered with the Housing Corporation established by the Housing Act 1964(51) which provides care equivalent to that given in residential accommodation provided under Part IV of the Social Work (Scotland) Act 1968;

• “temporary absence” means—

  (a)

  in the case of a person who is over pensionable age, 52 weeks;

  (b)

  in any other case, 13 weeks.

(4) In Schedule 4 the expressions “old age”, “mental disorder”, “mental handicap”, “drug or alcohol dependence” and “disablement” have the same meanings as those expressions have for the purposes of the Registered Homes Act 1984 and Regulations made thereunder.

Applicable amounts for persons in board and lodging accommodation and hostels

20.—(1) Subject to regulation 22 (reductions of applicable amounts) where—

(a) the claimant lives in board and lodging accommodation or a hostel; or

(b) if he is a member of a family,

(i) he and the members of his family live in such accommodation; or

(ii) he and the members of his family normally live in such accommodation and, where there is a period of absence from the accommodation of any member of the family, provided that the claimant or his partner lives in the accommodation during that absence,

• his weekly applicable amount shall, except in a case to which regulation 21 (special cases) or Part II of Schedule 5 (persons to whom regulation 20 does not apply) applies, be calculated in accordance with Part I of that Schedule.

(2) In this regulation and Schedule 5— “board and lodging accommodation” means—

(a) accommodation provided to the claimant or, if he is a member of a family, to him or any other members of his family, for a charge which is inclusive of the provision of that accommodation and at least some cooked or prepared meals which are both prepared and consumed in that accommodation or associated premises; or

(b) accommodation provided in a hotel, guest-house, lodging-house or some similar establishment;

“board and lodging area” means the area numbered in column (1) of Schedule 6 (board and lodging areas) and described in column (2) thereof and for the purposes of this regulation and Schedule 5 any place not included in the description of a board and lodging area in Schedule 6 shall be treated as forming part of the board and lodging area nearest to it;

“hostel” means a building not being a residential care home or nursing home—

(a)

in which there is provided for persons generally or for a class of persons, residential accommodation, otherwise than in separate and self-contained premises, and either board or facilities for the preparation of food adequate to the needs of those persons, or both and—

(b)

which is

(i)

managed by a housing association registered with the Housing Corporation established by the Housing Act 1964; or

(ii)

operated other than on a commercial basis and in respect of which funds are provided wholly or in part by a government department or agency or a local authority; or

(iii)

managed by a voluntary body or charity and provides care, support or supervision with a view to assisting those persons to be rehabilitated or resettled within the community; or

(iv)

for the purposes of any particular case, such other establishment of like nature as the Secretary of State may, in his discretion determine.

Special cases

21.—(1) Subject to regulation 22 (reductions in applicable amounts) in the case of a person to whom any paragraph in column (1) of Schedule 7 applies (applicable amounts in special cases), the amount included in the claimant’s weekly amount in respect of him shall be the amount prescribed in the corresponding paragraph in column (2) of that Schedule; but no amount shall be included in respect of a child or young person if the capital of that child or young person calculated in accordance with Part V in like manner as for the claimant, except where otherwise provided, would exceed £3,000.

(2) In Schedule 7, for the purposes of paragraph 1, 2, 3 or 18 (patients), where a person has been a patient for two or more distinct periods separated by one or more intervals each not exceeding 28 days, he shall be treated as having been a patient continuously for a period equal in duration to the total of those distinct periods.

(3) In Schedule 7—

• “person from abroad” means a person, who—

  (a)

  has a limited leave as defined in section 33(1) of the Immigration Act 1971(52) (hereinafter referred to as “the 1971 Act”) to enter or remain in the United Kingdom which was given in accordance with any provision of the immigration rules (as defined in that section) which refers to there being, or to there needing to be, no recourse to public funds or to there being no charge on public funds during that limited leave; but this sub-paragraph shall not apply to a person who is a national of a Member State, a state which is a signatory to the European Convention on Social and Medical Assistance (done in Paris on 11th December 1953)(53), the Channel Islands or the Isle of Man; or

  (b)

  having a limited leave (as defined in section 33(1) of the 1971 Act) to enter or remain in the United Kingdom, has remained without further leave under that Act beyond the time limited by the leave; or

  (c)

  is the subject of a deportation order being an order under section 5(1) of the 1971 Act (deportation) requiring him to leave and prohibiting him from entering the United Kingdom; or

  (d)

  is adjudged by the immigration authorities to be an illegal entrant (as defined in section 33(1) of the 1971 Act) who has not subsequently been given leave under that Act to enter or remain in the United Kingdom; or

  (e)

  has been allowed temporary admission to the United Kingdom by virtue of paragraph 21 of Schedule 2 to the 1971 Act; or

  (f)

  has been allowed temporary admission to the United Kingdom by the Secretary of State outside any provision of the 1971 Act; or

  (g)

  has not had his immigration status determined by the Secretary of State;

• “patient” means a person (other than a prisoner) who is regarded as receiving free in-patient treatment within the meaning of the Social Security (Hospital In-Patients) Regulations 1975(54).

• “prisoner” means a person who is detained in custody pending trial or sentence upon conviction or under a sentence imposed by a court other than a person whose detention is under the provisions of the Mental Heath Act 1983(55) or Mental Health (Scotland) Act 1984;

• “residential accommodation” means, subject to paragraph (4), accommodation for a person whose stay in the accommodation has become other than temporary which is accommodation provided under—

  (a)

  sections 21 to 24 and 26 of the National Assistance Act 1948(56) (provision of accommodation); or

  (b)

  in Scotland, for the purposes of section 27 of the National Health Service (Scotland) Act 1947(57) (prevention of illness and after-care) or under section 59 of the Social Work (Scotland) Act 1968(58) (provision of residential and other establishments) other than in premises which are registered under section 61 of that Act (registration) and which are used for the rehabilitation of alcoholics or drug addicts; or

  (c)

  under section 7 of the Mental Health (Scotland) Act 1984 (functions of local authorities); or

  (d)

  under section 21 of, and paragraph 1 or 2 of Schedule 8 to, the National Health Service Act 1977(59) (care of mothers and young children, prevention, care and aftercare) by a local social services authority other than—

  (i)

  such accommodation where full board is not available to the person; or

  (ii)

  accommodation provided under the said section 21 and paragraph 2 which is registered under the provisions of Part I of the Registered Homes Act 1984 where the premises are used for the rehabilitation of alcoholics or drug users; or

  (iii)

  a hostel within the meaning of regulation 20(2) (applicable amounts for persons in board and lodging accommodation or hostels).

(4) A person who would, but for this paragraph, be in residential accommodation within the meaning of paragraph (3) shall not be treated as being in residential accommodation if he is a person—

(a) who is under the age of 18 and in the care of a local authority under Part II or III of the Social Work (Scotland) Act 1968 (promotion of social welfare of children in need of care), or

(b) who is staying in a residential care home as defined in regulation 19(3) (applicable amounts for persons in residential care and nursing homes) under the provisions referred to in sub-paragraph (b) to (d) of paragraph (3) where—

(i) the weekly cost of such accommodation exceeds the maximum amount provided for under regulation 19 and paragraphs 6, 8, 9, 10 and 11 of Schedule 4 (applicable amounts of persons in residential care and nursing homes) in respect of such accommodation; and

(ii) the local authority accepts responsibility for the making of arrangements for the provision of such accommodation for that person in the light of that person being entitled to such maximum amount as a person in a residential care home under and by virtue of that regulation, provided that in the case of a person over pensionable age the local authority had accepted such responsibility for a period of not less than 2 years immediately before that person attained pensionable age.

(5) A claimant to whom paragraph 19 of Schedule 7 (disability premium) applies shall be entitled to income support for the period in respect of which that paragraph applies to him notwithstanding that his partner was also entitled to income support for that same period.

Reductions in applicable amounts in certain cases of actual or notional unemployment benefit disqualification

22.—(1) The weekly applicable amount of a claimant to whom paragraph (4) or (5) applies shall, subject to paragraph (2), be reduced by a sum equal to 40 per cent of the following amount (hereinafter referred to as the “relevant amount”)—

(a) in the case of a person to whom regulation 17 or 18 or paragraph 4 to 6, 9 to 12, 16, 17(c)(i) or (d)(i) of Schedule 7 applies—

(i) where he is a single claimant aged less than 18 or a member of a couple or a polygamous marriage where all the members, in either case, are less than 18, the amount specified in paragraph 1(1)(a) of Schedule 2 (applicable amounts);

(ii) where he is a single claimant aged not less than 18 but less than 25, the amount specified in paragraph 1(1)(b) of that Schedule;

(iii) where he is a single claimant aged not less than 25 or a member of a couple or a polygamous marriage at least one of whom is aged not less than 18, the amount specified in paragraph 1(1)(c) of that Schedule;

(b) in the case of a person to whom regulation 19 or 20 (applicable amounts for persons in residential care or nursing homes or board and lodging accommodation or hostels) or paragraph 14 or 15 of Schedule 7 (applicable amounts in special cases) applies, the amount allowed for personal expenses for him specified in paragraph 13 of Schedule 4 or, as the case may be, paragraph 11(b) of Schedule 5.

(2) Where—

(a) the claimant’s capital calculated in accordance with Part V (including any capital treated as his) does not exceed £200; and

(b) he or any member of his family is either pregnant or seriously ill,

• his weekly applicable amount shall be reduced by a sum equal to 20 per cent of the relevant amount in his case.

(3) A reduction under paragraph (1) or (2) shall, if it is not a multiple of 5p, be rounded to the nearest such multiple or, if it is a multiple of 2·5p but not of 5p, to the next lower multiple of 5p.

(4) This paragraph applies to a claimant—

(a) whose weekly applicable amount is calculated otherwise than in accordance with regulation 21 and paragraph 1 to 3, 8(b), 13, 16 and 18 of Schedule 7; and

(b) whose right to income support is, under section 20(3)(d)(i) of the Act (conditions of entitlement to income support), subject to the condition of availability for employment; and

(c) who—

(i) is disqualified for receiving unemployment benefit under section 20(1) of the Social Security Act(60) (disqualifications etc); or

(ii) has made a claim for unemployment benefit which has not been determined by an adjudication officer and in respect of which, in the opinion of an adjudication officer, a question as to disqualification under that sectionarises; or

(iii) has not made a claim for unemployment benefit or has had such a claim disallowed other than by reason of section 20(1) and, in either case, would be so disqualified if he were to make such a claim or it had not been so disallowed.

(5) This paragraph applies to a claimant who is not required to be available for employment by virtue of regulation 8(2) (persons not required to be available for employment) or a person to whom regulation 11(2) applies (exemption from requirement to register for employment).

(6) This regulation shall apply—

(a) in a case to which head (i) of paragraph (4)(c) applies, for the period of the disqualification;

(b) in a case to which head (ii) of paragraph (4)(c) applies, for a period of 13 weeks except that where, on subsequent determination of the claim for unemployment benefit—

(i) disqualification is not imposed, any reduction imposed under paragraph (1) or (2), as the case may be, shall be withdrawn,

(ii) disqualification is imposed but for a period of less than 13 weeks, the period of such reduction shall be adjusted to correspond with the period of disqualification;

(c) in a case to which head (iii) of paragraph (4)(c) applies, for the period for which the claimant would be disqualified if he were to make a claim for unemployment benefit or if such a claim had not been disallowed for other reasons.

(d) in a case to which paragraph (5) applies, for so long as that paragraph continues so to apply.

PART V INCOME AND CAPITAL

CHAPTER I general

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

23.—(1) The income and capital of a claimant’s partner and, subject to paragraph (2) and to regulation 44 (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 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 were a reference to his partner or that child or young person.

(2) Regulations 36(2) and 38(2), so far as they relate to paragraphs 1 to 10 of Schedule 8 (earnings to be disregarded) and regulation 41(1) (capital treated as income) shall not apply to a child or young person.

(3) Where a claimant or the partner of a claimant is married polygamously to two or more members of his 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.

Treatment of charitable or voluntary payments

24.—(1) Subject to paragraph (5), any charitable or voluntary payment, other than one which is or is due to be made at regular intervals or is one to which regulation 44(2) (modifications in respect of children and young persons) applies, made to the claimant on or after the date of claim shall be calculated in accordance with the following provisions of this regulation; and for the purposes of this regulation any such payment made to a member of the claimant’s family or to a person whose income and capital he is treated aspossessing under regulation 23(3) (calculation of income and capital of members of claimant’s family and of a polygamous marriage) shall be treated as a payment made to the claimant and shall be disregarded in calculating the income or capital of that member or that person.

(2) The first £250, whether in aggregate or otherwise, of any such payments made in the period of 52 weeks beginning with the first day of the benefit week in which the first payment is made shall be taken into account under Chapter VI of this Part as capital and to the extent that it is not a payment of capital shall be treated as capital.

(3) Any such payments in the period of 52 weeks in excess of £250 shall be taken into account under Chapter V of this Part as income and to the extent that it is not a payment of income shall be treated as income.

(4) In the case of a claimant who continues to be in receipt of income support at the end of the period of 52 weeks, the foregoing provisions of this regulation shall continue to apply thereafter with the modification that any subsequent period of 52 weeks shall begin with the first day of the benefit week in which the first payment is made after the end of the previous period of 52 weeks.

(5) This regulation shall not apply to a person to whom section 23 of the Act (trade disputes) applies or to a member of his family for so long as that section applies to that person.

Liable relative payments

25.  Regulations 29 to 44, 46 to 52 and Chapter VIII of this Part shall not apply to any payment which is to be calculated in accordance with Chapter VII thereof (liable relatives).

Calculation of income and capital of students

26.  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 VIII thereof (students).

Disregard of fractions

27.  Where any income or capital calculated in accordance with this Part includes a fraction of a penny that fraction shall be disregarded.

CHAPTER II income

Calculation of income

28.—(1) For the purposes of section 20(3) of the Act (conditions of entitlement to income support) the income of a claimant shall be calculated on a weekly basis—

(a) by determining in accordance with this Part, other than Chapter VI, the weekly amount of his income; and

(b) by adding to that amount the weekly income calculated under regulation 53 (calculation of tariff income from capital).

(2) For the purposes of paragraph (1) “income” includes income derived under regulations 24 and 41 to 43 (treatment of charitable or voluntary payments, capital treated as income, notional income and notional earnings of seasonal workers).

Calculation of earnings derived from employed earner’s employment and income other than earnings

29.—(1) Except where regulation 33 applies (weekly amount of charitable or voluntary payment) earnings derived from employment as an employed earner and income which does not consist of earnings shall be taken into account over a period determined in accordance with the following paragraphs and at a weekly amount determined in accordance with regulation 32 (calculation of weekly amount of income).

(2) Subject to paragraph (3), the period over which a payment is to be taken into account shall be—

(a) in a case where it is payable in respect of a period, a period equal to the length of that period;

(b) in any other case, a period equal to such number of weeks as is equal to the number obtained (and any fraction shall be treated as a corresponding fraction of a week) by dividing the net earnings, or in the case of income which does not consist of earnings, the amount of that income by the amount of income support which would be payable had the payment not been made plus an amount equal to the total of the sums which would fall to be disregarded from that payment under Schedule 8 or, as the case may be, 9 (earnings and other income to be disregarded) as is appropriate in the claimant’s case,

and that period shall begin on the date on which the payment is treated as paid under regulation 31 (date on which income is treated as paid).

(3) Where earnings not of the same kind are derived from the same source and the periods in respect of which those earnings would, but for this paragraph, fall to be taken into account—

(a) overlap, wholly or partly, those earnings shall be taken into account over a period equal to the aggregate length of those periods;

(b) and that period shall begin with the earliest date on which any part of those earnings would otherwise be treated as paid under regulation 31 (date on which income is treated as paid).

(4) In a case to which paragraph (3) applies, any payment to which regulation 35(1)(b) or (c) (earnings of employed earners) applies shall be taken into account before a payment to which regulation 35(1)(d) applies but after any earnings normally derived from the employment.

(5) For the purposes of this regulation the claimant’s earnings and income which does not consist of earnings shall be calculated in accordance with Chapters III and V respectively of this Part.

Calculation of earnings of self-employed earners

30.—(1) Except where paragraph (2) applies, where a claimant’s income consists of earnings from employment as a self-employed earner the weekly amount of his earnings shall be determined by reference to his average weekly earnings from that employment—

(a) over a period of 52 weeks; or

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

(2) Where the claimant’s earnings consist of royalties or sums paid periodically for or in respect of any copyright those earnings shall be taken into account over a period equal to such number of weeks as is equal to the number obtained (and any fraction shall be treated as a corresponding fraction of a week) by dividing the earnings by the amount of income support which would be payable had the payment not been made plus an amount equal to the total of the sums which would fall to be disregarded from the payment under Schedule 8 (earnings to be disregarded) as is appropriate in the claimant’s case.

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

Date on which income is treated as paid

31.—(1) Except where paragraph (2) applies, a payment of income to which regulation 29 (calculation of earnings derived from employed earner’s employment and income other than earnings) applies shall be treated as paid—

(a) in the case of a payment which is due to be paid before the first benefit week pursuant to the claim, on the date on which it is due to be paid;

(b) in any other case, on the first day of the benefit week in which it is due to be paid or the first succeeding benefit week in which it is practicable to take it into account.

(2) Income support, unemployment benefit, sickness or invalidity benefit, or severe disablement allowance under the Social Security Act(61) shall be treated as paid on the day of the benefit week in respect of which it is paid.

Calculation of weekly amount of income

32.—(1) For the purposes of regulation 29 (calculation of earnings derived from employed earner’s employment and income other than earnings), subject to paragraphs (2) to (5) and regulation 34 (incomplete benefit weeks), 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 three 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) Where a payment for a period not exceeding a week is treated under regulation 31(1)(a) (date on which income is treated as paid) as paid before the first benefit week and a part is to be taken into account for some days only in that week (the relevant days), the amount to be taken into account for the relevant days shall be calculated by multiplying the amount of the payment by the number equal to the number of relevant days and dividing the product by the number of days in the period in respect of which it is made.

(3) Where a payment is in respect of a period equal to or in excess of a week and a part thereof is to be taken into account for some days only in a benefit week (the relevant days), the amount to be taken into account for the relevant days shall, except where paragraph (4) applies, be calculated by multiplying the amount of the payment by the number equal to the number of relevant days and dividing the product by the number of days in the period in respect of which it is made.

(4) In the case of a payment of—

(a) unemployment benefit, sickness or invalidity benefit, or severe disablement allowance under the Social Security Act, the amount to be taken into account for the relevant days shall be the amount of benefit paid in respect of those days;

(b) income support, the amount to be taken into account for the relevant days shall be calculated by multiplying the weekly amount of the benefit by the number of relevant days and dividing the product by seven.

(5) Except in the case of a payment which it has not been practicable to treat under regulation 31(1)(b) as paid on the first day of the benefit week in which it is due to be paid, where a payment of income from a particular source is or has been paid regularly and that payment falls to be taken into account in the same benefit week as a payment of the same kind and from the same source, the amount of that income to be taken into account in any one benefit week shall not exceed the weekly amount determined under paragraph (1)(a) or (b), as the case may be, of the payment which under regulation 31(1)(b) (date on which income is treated as paid) is treated as paid first.

(6) Where the amount of the claimant’s income fluctuates and has changed more than once, or a claimant’s regular pattern of work is such that he does not work every week, the foregoing paragraphs may be modified so that the weekly amount of his income is determined by reference to his average weekly income—

(a) if there is a recognisable cycle of work, over the period of one complete cycle (including, where the cycle involves periods in which the claimant does no work, those periods but disregarding any other absences);

(b) in any other case, over a period of five weeks or such other period as may, in the particular case, enable the claimant’s average weekly income to be determined more accurately.

Weekly amount of charitable or voluntary payment

33.—(1) Subject to paragraph (2), the weekly amount of any charitable or voluntary payment which is to be treated as income under regulation 24(3) (treatment of charitable or voluntary payments) shall be determined as follows—

(a) in a case where the first such payment exceeds the annual limit of £250, the excess shall be divided by 52; and the resulting amount treated as weekly income for a period of 52 weeks beginning on the date on which that payment was made;

(b) in a case where any subsequent payment in aggregate with earlier payments first exceeds that limit, the excess shall be divided by the number equal to the number of weeks (including any part of a week) in the interval beginning with the date of that payment to the end of the period of 52 weeks; and the resulting amount treated as weekly income for each week in that interval; and

(c) any payment made after that in either sub-paragraph (a) or (b) shall be divided by the number equal to the number of weeks (including any part of a week) in the interval beginning with the date of that payment to the end of the period of 52 weeks; and the resulting amount treated as weekly income for each week in that interval.

(2) Where the date on which the payment is made is not the first day of the benefit week in which it is made it shall be treated as paid on the first day of that benefit week or the first succeeding benefit week in which it is practicable to take the weekly amount of the payment into account.

Incomplete weeks of benefit

34.—(1) Where a claim for income support is made for a period (the relevant period) which is not a complete benefit week and a payment of income is to be taken into account in that period, for the purposes of calculating the amount to be taken into account—

(a) the claimant shall be treated as if he had a benefit week beginning seven days before the end of the relevant period; and

(b) except where paragraph (2) or (3) applies, the amount to be taken into account in the relevant period shall be determined—

(i) by multiplying the weekly amount of the payment determined under regulation 32(1) (calculation of weekly amount of income) less any sum which would fall to be disregarded from that amount under Schedule 8 or, as the case may be, 9 (earnings and other income to be disregarded) by the number equal to the number of days in the relevant period; and

(ii) by dividing the product by 7.

(2) Where entitlement to income support would otherwise end before the last day of a benefit week (the relevant week) and a payment of income is to be taken into account in that week, for the purposes of calculating the amount to be taken into account in the relevant week—

(a) the claimant shall be treated as if he had a benefit week beginning seven days before the last day of the relevant week; and

(b) except where paragraph (3) applies, the amount to be taken into account shall be determined—

(i) by multiplying the weekly amount of the payment determined under regulation 32(1) less any sum which would fall to be disregarded from that amount under Schedule 8 or, as the case may be, 9 by the number equal to the number of days in the relevant week in respect of which there is entitlement to income support; and

(ii) by dividing the product by 7.

(3) The amount of any unemployment benefit, sickness or invalidity benefit, or severe disablement allowance under the Social Security Act to be taken into account under paragraph (1) or (2) shall be the amount of benefit payable in respect of those days for which income support is payable.

CHAPTER III employed earners

Earnings of employed earners

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

(a) any bonus or commission;

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

(c) any payment in lieu of notice or any lump sum payment intended as compensation for the loss of employment but only in so far as it represents loss of income;

(d) any holiday pay except any payable more than four weeks after the termination or interruption of employment but this exception shall not apply to a claimant to whom, and for so long as, section 23 of the Act (trade disputes) applies;

(e) any payment by way of a retainer;

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

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

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

(g) any award of compensation made under section 68(2) or 71(2)(a) of the Employment Protection (Consolidation) Act 1978(62) (remedies for unfair dismissal and compensation);

(h) any such sum as is referred to in section 18(2) of the Social Security (Miscellaneous Provisions) Act 1977(63) (certain sums to be earnings for social security purposes).

(2) “Earnings” shall not include—

(a) any payment in kind;

(b) any remuneration paid by or on behalf of an employer to the claimant who for the time being is unable to work due to illness or maternity;

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

(d) any occupational pension.

Calculation of net earnings of employed earners

36.—(1) For the purposes of regulation 29 (calculation of earnings of employed earners) the earnings of a claimant 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 paragraphs 1 to 13 of Schedule 8.

(3) For the purposes of paragraph (1) net earnings shall be calculated by taking into account the gross earnings of the claimant from that employment less—

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

(i) income tax;

(ii) primary Class 1 contributions under the Social Security Act(64); and

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

CHAPTER IV self-employed earners

Earnings of self-employed earners

37.—(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(65) to the claimant for the purpose of assisting him in carrying on his business.

(2) “Earnings” shall not include, where a claimant is employed in providing board and lodging accommodation for which a charge is payable, any payment by way of such a charge except where the claimant is a seasonal worker to whom regulation 43 (notional earnings of seasonal workers) applies and the payment is due during the period of his normal employment.

Calculation of net profit of self-employed earners

38.—(1) For the purposes of regulation 30 (calculation of 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(66), his share of the net profit derived from that employment less—

(i) an amount in respect of income tax and of social security contributions payable under the Social Security Act calculated in accordance with regulation 39 (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 paragraphs 1 to 13 of Schedule 8.

(3) For the purposes of paragraph (1) (a) the net profit of the employment shall, except where paragraph (9) applies, be calculated by taking into account the earnings of the employment over the period determined under regulation 30 (calculation of earnings of self-employed earners) less—

(a) subject to paragraphs (5) to (7), 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 Social Security Act,calculated in accordance with regulation 39 (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) (b), the net profit of the employment shall be calculated by taking into account the earnings of the employment over the period determined under regulation 30 less, subject to paragraphs (5) to (7), any expenses wholly and exclusively defrayed in that period for the purposes of that employment.

(5) Subject to paragraph (6), no deduction shall be made under paragraph (3) (a) or (4) 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 period determined under regulation 30 (calculation of earnings of self-employed earners);

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

(f) any expenses incurred in providing business entertainment.

(6) A deduction shall be made under paragraph (3) (a) or (4) 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.

(7) An adjudication officer shall refuse to make a deduction in respect of any expenses under paragraph (3) (a) or (4) where he is not satisfied that the expense has been defrayed or, having regard to the nature of the expense and its amount, that it has been reasonably incurred.

(8) For the avoidance of doubt—

(a) a deduction shall not be made under paragraph (3) (a) or (4) 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 period determined under regulation 30 (calculation of earnings of self-employed earners);

(ii) any income expended in the repair of an existing 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.

(9) 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 39 (deduction of tax and contributions for self-employed earners); and

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

(10) Notwithstanding regulation 30 (calculation of earnings of self-employed earners) and the foregoing paragraphs, an adjudication officer may assess any item of a claimant’s income or expenditure over a period other than that determined under regulation 30 as may, in the particular case, enable the weekly amount of that item of income or expenditure to be determined more accurately.

(11) 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.

(12) 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

39.—(1) The amount to be deducted in respect of income tax under regulation 38 (1) (b) (i), (3) (b) (i) or (9) (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 less only the personal relief to which the claimant is entitled under sections 8 (1) and (2) and 14 (1) (a) and (2) of the Income and Corporation Taxes Act 1970 (personal relief)(67) as is appropriate to his circumstances; but, if the period determined under regulation 30 (calculation of earnings of self-employed earners) 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 38(1)(b)(i), (3)(b)(ii) or (9)(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(68) except where the claimant’s chargeable income is less than the amount for the time being specified in section 7 (5) of that Act(69) (small earnings exception); and

(b) the amount of Class 4 contributions (if any) which would be payable under section 9 of that Act(70) (contributions recoverable under Taxes Acts) in respect of profits or gains equal to the amount of that income.

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

(a) except where sub-paragraph (b) applies, the earnings derived from the employment less any expenses deducted under paragraph (3) (a) or, as the case may be, (4) of regulation 38;

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

CHAPTER V other income

Calculation of income other than earnings

40.—(1) For the purposes of regulation 29 (calculation of 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) and (3), be his gross income and any capital treated as income under regulations 24(3), 41 and 44 (treatment of charitable and voluntary payments, capital treated as income and modifications in respect of children and young persons).

(2) There shall be disregarded from the calculation of a claimant’s gross income under paragraph (1), any sum, where applicable, specified in Schedule 9.

(3) Where the payment of any benefit under the benefit Acts(71) 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) For the avoidance of doubt there shall be included as income to be taken into account under paragraph (1) any payment to which regulation 35(2) or 37(2) (payments not earnings) applies.

Capital treated as income

41.—(1) Any capital payable by instalments which are outstanding on the first day in respect of which income support is payable or the date of the determination of the claim, whichever is earlier, or, in the case of a review, the date of any subsequent review 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 £6,000, be treated as income.

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

(3) In the case of a person to whom section 23 of the Act (trade disputes) applies and for so long as it applies, any payment under section 1 of the Child Care Act 1980(72) (duty of local authorities to promote welfare of children) or, as the case may be, section 12 of the Social Work (Scotland) Act 1968(73) (general social welfare) shall be treated as income.

Notional income

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

(2) Except in the case of—

(a) a discretionary trust;

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

(c) unemployment benefit under the Social Security Act which may be payable to a claimant who is not required to be available for employment; or

(d) an increase of child benefit payable to a claimant under regulation 2(2) of the Child Benefit and Social Security (Fixing and Adjustment of Rates) Regulations 1976(74) (rates of child benefit),

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 him 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 the claimant but—

(a) has not been paid to him;

(b) is not a payment prescribed in regulation 9 or 10 of the Social Security (Payments on Account, Overpayment and Recovery) Regulations 1987(75) (duplication and prescribed payments or maintenance payments) and not made on or before the date prescribed in relation to it,

shall be treated as possessed by the claimant.

(4) Any payment of income made—

(a) to a third party in respect of a member of the family (but not a member of the third party’s family) shall be treated—

(i) in a case where that payment is derived from a payment of any benefit under the benefit Acts, a war disablement pension or war widow’s pension, as possessed by that member if it is paid to any member of that family;

(ii) in any other case, as possessed by that member to the extent that it is used for the food, clothing, footwear, fuel, rent or rates for which housing benefit is payable, or any housing costs to the extent that they are met under regulations 17(e) or 18(f) (housing costs), of any member of that family;

(b) to a member of the family in respect of 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;

but, except where sub-paragraph (a)(i) applies and in the case of a person to whom section 23 of the Act (trade disputes) applies, this paragraph shall not apply to any payment in kind.

(5) Where a claimant’s earnings are not ascertainable at the time of the determination of the claim or of any subsequent review the adjudication 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.

(6) 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.

(7) Where a claimant is treated as possessing any income under any of paragraphs (1) to (4) 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.

(8) Where a claimant is treated as possessing any earnings under paragraph (5) or (6) 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 36 (calculation of net earnings of employed earners) shall not apply and his net earnings shall be calculated by taking into account the 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 less only the personal relief to which the claimant is entitled under sections 8(1) and (2) and 14(1)(a) and (2) of the Income and Corporation Taxes Act 1970 (personal relief) as is appropriate to his circumstances; but, if the period over which those earnings are to be taken into account is less than a year, the amount of the personal relief deductible under this paragraph shall be calculated on a pro rata basis;

(b) an amount in respect of primary Class 1 contributions payable under the Social Security Act in respect of those earnings; and

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

Notional earnings of seasonal workers

43.—(1) Where the claimant is a seasonal worker or, if he is one of a couple, he or his partner is a seasonal worker (but not both), and—

(a) a claim for income support is made in respect of any day in the claimant’s off-season or, as the case may be, in his partner’s off-season; and

(b) his or, as the case may be, his partner’s net earnings in his last period of normal employment less any earnings for any week in that period which have been taken into account in calculating entitlement to income support, exceeded three times the total of the amounts for that period specified in head (i) or, as the case may be, (ii) of sub-paragraph (a) and, where applicable, sub-paragraph (b) ofparagraph (2),

the amount by which those earnings exceeded that total shall be divided by the number equal to the number of weeks (including any part of a week) in his or, as the case may be, his partner’s off-season and the amount so obtained shall be treated as earnings possessed by the claimant or his partner in each of those weeks.

(2) The amounts specified for the purposes of paragraph (1)(b) are—

(a) either—

(i) in a case where the claimant is one of a couple, the personal allowance for a couple; or

(ii) in a case where he is not one of a couple, the personal allowance for a single claimant not less than age 25; and

(b) in respect of each child or young person who is a member of the claimant’s family, the amount which is equal to the applicable amount for a child under age 11.

(3) Where the claimant and his partner are seasonal workers and both have started their, or only one has started his, off-season paragraph (1) shall apply to the claimant or, where his partner is the only one whose off-season has started, to his partner as if he were the only seasonal worker until the end of his off-season and thereafter to the other member subject to the modifications in paragraphs (4) to (6).

(4) The other member’s last period of normal employment shall be—

(a) in a case where that member’s normal employment has ceased, the period beginning with the start of the employment of that member and ending with the last day of that employment;

(b) in a case where that member’s normal employment has not ceased, the period beginning with the start of the employment of that member and ending with—

(i) the day before the start of the off-season of his partner; or

(ii) the date of claim for income support,whichever is the later;

(5) The period of the other member’s off-season shall be—

(a) in a case where that member’s normal employment has ceased, the period beginning with the start of his off-season and ending with the day before he is to resume normal employment; or

(b) in a case where that member’s normal employment has not ceased, the period beginning with the date on which the off-season of either member first starts or, as the case may be, the date of claim for income support whichever is later and ending with the day before that on which either member is first to resume normal employment.

(6) The other member’s net earnings in his last period of normal employment as determined under paragraph (4), less—

(a) any earnings for any week in that period which have been taken into account in calculating entitlement to income support; and

(b) in so far as any week in that period—

(i) does not coincide with a week in his partner’s period of normal employment, 3 times the total of the amounts for that week specified for the purposes of paragraph (1)(b);

(ii) does coincide with a week in his partner’s period of normal employment, the extent (if any) by which the amount so specified has not been taken into account in the calculation of his partner’s notional earnings,

shall be divided by the number equal to the number of weeks (including any part of a week) in that member’s off-season as determined under paragraph (5) and the amount so obtained shall be treated as earnings possessed by that member in each of those weeks.

(7) In this regulation, the expressions “normal employment”, “off-season” and “seasonal worker” have the meanings assigned to those expressions in regulation 21 of the Social Security (Unemployment, Sickness and Invalidity Benefit) Regulations 1983(76) (additional condition with respect to receipt of unemployment benefit) except that the expression “employment” in that regulation shall be construed as if it included a reference to employment as a self-employed earner.

(8) Where a claimant or his partner is treated as possessing any earnings under this regulation the foregoing provisions of this Part, except regulation 38(2) in so far as it applies to paragraph 3 of Schedule 8 (earnings to be disregarded), shall apply for the purposes of calculating those earnings as if a payment had actually been made and as if they were actual earnings which he does possess.

Modifications in respect of children and young persons

44.—(1) Any capital of a child or young person payable by instalments which are outstanding on the first day in respect of which income support is payable or at the date of the determination of the claim, whichever is earlier, or, in the case of a review, the date of any subsequent review 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) In the case of a child or young person who is residing at an educational establishment at which he is receiving relevant education—

(a) any payment made to the educational establishment, in respect of that child’s or young person’s maintenance, by or on behalf of a person who is not a member of the family or by a member of the family out of funds contributed for that purpose by a person who is not a member of the family, shall be treated as income of that child or young person but it shall only be taken into account over periods during which that child or young person is present at that educational establishment; and

(b) if a payment has been so made, for any period in a benefit week in term-time during which that child or young person returns home, he shall be treated as possessing an amount of income in that week calculated by multiplying the amount of personal allowance and disabled child premium, if any, applicable in respect of that child or young person by the number equal to the number of days in that week in which he was present at his educational establishment and dividing the product by seven; but this sub-paragraph shall not apply where the educational establishment is provided under section 8 of the Education Act 1944(77) (duty of local authority to secure primary and secondary schools) by a local education authority or where the payment is made under section 49 or 50 of the Education (Scotland) Act 1980(78) (power of education authority to assist persons).

(3) Where a child or young person—

(a) is resident at an educational establishment and he is wholly or partly maintained at that establishment by a local education authority under section 8 of the Education Act 1944; or

(b) is maintained at an educational establishment under section 49 or 50 of the Education (Scotland) Act 1980,

he shall for each day he is present at that establishment be treated as possessing an amount of income equal to the sum obtained by dividing the amount of personal allowance and disabled child premium, if any, applicable in respect of him by seven.

(4) Where the income of a child or young person who is a member of the claimant’s family calculated in accordance with the foregoing provisions of this Part exceeds the amount of the personal allowance and disabled child premium, if any, applicable in respect of that child or young person, the excess shall not be treated as income of the claimant.

(5) 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.

(6) In calculating the net earnings or net profit of a child or young person there shall be disregarded, (in addition to any sum which falls to be disregarded under paragraphs 11 to 13), any sum specified in paragraphs 14 and 15 of Schedule 8 (earnings to be disregarded).

(7) Any income of a child or young person which is to be disregarded under Schedule 9 (income other than earnings to be disregarded) shall be disregarded in such manner as to produce the result most favourable to the claimant.

(8) Where a child or young person is treated as possessing any income under paragraphs (2) and (3) the foregoing provisions of this Part shall apply for the purposes of calculating that income as if a payment had actually been made and as if it were actual income which he does possess.

CHAPTER VI capital

Capital limit

45.  For the purposes of section 22 (6) of the Act as it applies to income support (no entitlement to benefit if capital exceeds prescribed amount), the prescribed amount is £6,000.

Calculation of capital

46.—(1) For the purposes of Part II of the Act as it applies to income support, 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 regulations 24 (2) and 48 (treatment of charitable or voluntary payments and 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 10.

Disregard of capital of child or young person

47.  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

48.—(1) Any annual bounty derived from employment to which paragraph 7 of Schedule 8 applies shall be treated as capital.

(2) Except in the case of an amount to which section 23(5) (a) (ii) of the Act (refund of tax in trade disputes cases) applies, 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.

(3) Any holiday pay which is not earnings under regulation 35(1) (d) (earnings of employed earners) shall be treated as capital.

(4) Except any income derived from capital disregarded under paragraph 1, 2, 4, 6, or 12 of Schedule 10, 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) Subject to paragraph (6), 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) For so long as section 23 of the Act (trade disputes) applies to a person, paragraph (5) shall not apply to him and, if he is a person to whom sub-section (8) of that section applies, that paragraph shall not apply until the end of the period specified in that sub-section.

(7) Any payment under section 30 of the Prison Act 1952(79) (payments for discharged prisoners) or allowance under section 17 of the Prisons (Scotland) Act 1952(80) (allowances to prisoners on discharge) shall be treated as capital.

(8) Any payment made by a local authority which represents arrears of payments under section 34 (6) or, as the case may be, section 50 of the Children Act 1975(81) (contributions to a custodian towards the cost of accommodation and maintenance of a child) shall be treated as capital.

Calculation of capital in the United Kingdom

49.  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 first day on which income support is payable or the date of the determination of the claim, whichever is the earlier, or in the case of a review, the date of any subsequent review, 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

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

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

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

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

Notional capital

51.—(1) A claimant shall be treated as possessing capital of which he has deprived himself for the purpose of securing entitlement to income support or increasing the amount of that benefit.

(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 10,

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 but only from the date on which it would be so acquired.

(3) Any payment of capital made

(a) to a third party in respect of a member of the family (but not a member of the third party’s family) shall be treated—

(i) in a case where that payment is derived from a payment of any benefit under the benefit Acts, a war disablement pension or a war widow’s pension, as possessed by that member if it is paid to any member of the family;

(ii) in any other case, as possessed by that member to the extent that it is used for the food, clothing, footwear, fuel, rent or rates for which housing benefit is payable, or any housing costs to the extent that they are met under regulation 17 (e) and 18 (f) (housing costs), of any member of that family;

(b) to 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 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 46 (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 which 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 provisions of this Chapter shall apply for the purposes of calculating its amount as if it were actual capital which he does possess.

Capital jointly held

52.  Except where a claimant possesses capital which is disregarded under regulation 51 (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.

Calculation of tariff income from capital

53.—(1) Where the claimant’s capital calculated in accordance with this Part 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 £6,000.

(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 regulations 24 (2), 48 and 60 (charitable or voluntary payments, income treated as capital and liable relative payments treated as capital).

CHAPTER VII liable relatives

Interpretation

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

• “claimant” includes a young claimant;

• “liable relative” means—

  (a)

  a spouse or former spouse of a claimant or of a member of the claimant’s family;

  (b)

  a parent of a child or young person who is a member of the claimant’s family or of a young claimant;

  (c)

  a person who has not been adjudged to be the father of a child or young person who is a member of the claimant’s family or of a young claimant where that person is contributing towards the maintenance of that child, young person or young claimant and by reason of that contribution he may reasonably be treated as the father of that child, young person or young claimant;

  (d)

  a person liable to maintain another person by virtue of section 26(3)(c) of the Act (liability to maintain) where the latter is the claimant or a member of the claimant’s family,

  and, in this definition, a reference to a child's, young person’s or young claimant’s parent includes any person in relation to whom the child, young person or young claimant was treated as a child or a member of the family;

• “payment” means a periodical payment or any other payment made by or derived from a liable relative including, except in the case of a discretionary trust, any payment which would be so made or derived upon application being made by the claimant but which has not been acquired by him but only from the date on which it would be so acquired; but it does not include any payment—

  (a)

  arising from a disposition of property made in contemplation of, or as a consequence of—

  (i)

  an agreement to separate; or

  (ii)

  any proceedings for judicial separation, divorce or nullity of marriage;

  (b)

  made after the death of the liable relative;

  (c)

  made by way of a gift but not in aggregate or otherwise exceeding £250 in the period of 52 weeks beginning with the date on which the payment, or if there is more than one such payment the first payment, is made; and, in the case of a claimant who continues to be in receipt of income support at the end of the period of 52 weeks, this provision shall continue to apply thereafter with the modification that any subsequent period of 52 weeks shall begin with the first day of the benefit week in which the first payment is made after the end of the previous period of 52 weeks;

  (d)

  to which regulation 44(2) applies (modifications in respect of children and young persons);

  (e)

  made—

  (i)

  to a third party in respect of the claimant or a member of the claimant’s family; or

  (ii)

  to the claimant or to a member of the claimant’s family in respect of a third party,

  where having regard to the purpose of the payment, the terms under which it is made and its amount it is unreasonable to take it into account;

  (f)

  in kind;

  (g)

  to, or in respect of, a child or young person who is to be treated as not being a member of the claimant’s household under regulation 16 (circumstances in which a person is to be treated as being or not being a member of the same household);

  (h)

  which is not a periodical payment, to the extent that any amount of that payment—

  (i)

  has already been taken into account under this Part by virtue of a previous claim or determination; or

  (ii)

  has been recovered under section 27(1) of the Act (prevention of duplication of payments) or is currently being recovered; or

  (iii)

  at the time the determination is made, has been used by the claimant except where he has deprived himself of that amount for the purpose of securing entitlement to income support or increasing the amount of that benefit;

• “periodical payment” means—

  (a)

  a payment which is made or is due to be made at regular intervals in pursuance of a court order or agreement for maintenance;

  (b)

  in a case where the liable relative has established a pattern of making payments at regular intervals, any such payment;

  (c)

  any payment not exceeding the amount of income support payable had that payment not been made;

  (d)

  any payment representing a commutation of payments to which sub-paragraphs (a) or (b) of this definition applies whether made in arrears or in advance,

  but does not include a payment due to be made before the first benefit week pursuant to the claim which is not so made;

• “young claimant ” means a person aged 16 or over but under 19 who makes a claim for income support.

Treatment of liable relative payments

55.  Except where regulation 60(1) (liable relative payments to be treated as capital) applies a payment shall—

(a) to the extent that it is not a payment of income, be treated as income;

(b) be taken into account in accordance with the following provisions of this Chapter.

Period over which periodical payments are to be taken into account

56.—(1) The period over which a periodical payment is to be taken into account shall be—

(a) in a case where the payment is made at regular intervals, a period equal to the length of that interval;

(b) in a case where the payment is due to be made at regular intervals but is not so made, such number of weeks as is equal to the number (and any fraction shall be treated as a corresponding fraction of a week) obtained by dividing the amount of that payment by the weekly amount of that periodical payment as calculated in accordance with regulation 58(4) (calculation of the weekly amount of a liable relative payment);

(c) in any other case, a period equal to a week.

(2) The period under paragraph (1) shall begin on the date on which the payment is treated as paid under regulation 59 (date on which a liable relative payment is to be treated as paid).

Period over which payments other than periodical payments are to be taken into account

57.—(1) Subject to paragraph (2), the number of weeks over which a payment other than a periodical payment is to be taken into account shall be equal to the number (and any fraction shall be treated as a corresponding fraction of a week) obtained by dividing that payment by—

(a) where the payment is in respect of the claimant or the claimant and any child or young person who is a member of the family, the aggregate of £2 and the amount of income support which would be payable had the payment not been made;

(b) where the payment is in respect of one or more than one child or young person who is a member of the family the amount prescribed in Schedule 2 (applicable amount) in respect of each child or young person and any family and lone parent premium;

(2) Where a liable relative makes a periodical payment and any other payment concurrently and the weekly amount of that periodical payment, as calculated in accordance with regulation 58 (calculation of the weekly amount of a liable relative payment), is less than—

(a) in a case where the periodical payment is in respect of the claimant or the claimant and any child or young person who is a member of the family, the aggregate of £2 and the amount of income support which would be payable had the payments not been made; or

(b) in a case where the periodical payment is in respect of one or more than one child or young person who is a member of the family, the aggregate of the amount prescribed in Schedule 2 in respect of each such child or young person and any family and lone parent premium,

that other payment shall, subject to paragraph (3), be taken into account over a period of such number of weeks as is equal to the number obtained (and any fraction shall be treated as a corresponding fraction of a week) by dividing that payment by an amount equal to the extent of the difference between the amount referred to in sub-paragraph (a) or (b), as the case may be, and the weekly amount of the periodical payment.

(3) If—

(a) the liable relative ceases to make periodical payments, the balance (if any) of the other payment shall be taken into account over the number of weeks equal to the number (and any fraction shall be treated as a corresponding fraction of a week) obtained by dividing that balance by the amount referred to in sub-paragraph (a) or (b) of paragraph (1), as the case may be;

(b) the amount of any subsequent periodical payment varies, the balance (if any) of the other payment shall be taken into account over a period of such number of weeks as is equal to the number obtained (and any fraction shall be treated as a corresponding fraction of a week) by dividing that balance by an amount equal to the extent of the difference between the amount referred to in sub-paragraph (a) or (b) of paragraph (2) and the weekly amount of the subsequent periodical payment.

(4) The period under paragraph (1) or (2) shall begin on the date on which the payment is treated as paid under regulation 59 (date on which a liable relative payment is treated as paid) and under paragraph (3) shall begin on the first day of the benefit week in which the cessation or variation of the periodical payment occurred.

Calculation of the weekly amount of a liable relative payment

58.—(1) Where a periodical payment is made or is due to be made at intervals of one week, the weekly amount shall be the amount of that payment.

(2) Where a periodical payment is made or is due to be made at intervals greater than one week and those intervals are monthly, the weekly amount shall be determined by multiplying the amount of the payment by 12 and dividing the product by 52.

(3) Where a periodical payment is made or is due to be made at intervals and those intervals are neither weekly nor monthly, the weekly amount shall be determined by dividing that payment by the number equal to the number of weeks (including any part of a week) in that interval.

(4) Where a payment is made and that payment represents a commutation of periodical payments whether in arrears or in advance, the weekly amount shall be the weekly amount of the individual periodical payments so commutated as calculated under paragraphs (1) to (3) as is appropriate.

(5) The weekly amount of a payment to which regulation 57 applies (period over which payments other than periodical payments are to be taken into account) shall be equal to the amount of the divisor used in calculating the period over which the payment or, as the case may be, the balance is to be taken into account.

Date on which a liable relative payment is to be treated as paid

59.—(1) A periodical payment is to be treated as paid—

(a) in the case of a payment which is due to be made before the first benefit week pursuant to the claim, on the day in the week in which it is due to be paid which corresponds to the first day of the benefit week;

(b) in any other case, on the first day of the benefit week in which it is due to be paid unless, having regard to the manner in which income support is due to be paid in the particular case, it would be more practicable to treat it as paid on the first day of a subsequent benefit week.

(2) Subject to paragraph (3), any other payment shall be treated as paid—

(a) in the case of a payment which is made before the first benefit week pursuant to the claim, on the day in the week in which it is paid which corresponds to the first day of the benefit week;

(b) in any other case, on the first day of the benefit week in which it is paid unless, having regard to the manner in which income support is due to be paid in the particular case, it would be more practicable to treat it as paid on the first day of a subsequent benefit week.

(3) Any other payment paid on a date which falls within the period in respect of which a previous payment is taken into account, not being a periodical payment, is to be treated as paid on the first day following the end of that period.

Liable relative payments to be treated as capital

60.—(1) Subject to paragraph (2), where a liable relative makes a periodical payment concurrently with any other payment, and the weekly amount of the periodical payment as calculated in accordance with regulation 58(1) to (4) (calculation of the weekly amount of a liable relative payment), is equal to or greater than the amount referred to in sub-paragraph (a) of regulation 57(2) (period over which payments other than periodical payments are to be taken into account) less the £2 referred to therein, or sub-paragraph (b) of that regulation, as the case may be, the other payment shall be treated as capital.

(2) If, in any case, the liable relative ceases to make periodical payments, the other payment to which paragraph (1) applies shall be taken into account under paragraph (1) of regulation 57 but, notwithstanding paragraph (4) thereof, the period over which the payment is to be taken into account shall begin on the first day of the benefit week following the last one in which a periodical payment was taken into account.

CHAPTER VIII students

Interpretation

61.  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 the Scottish Vocational Education Council, a general certificate of education (advanced level) a Scottish certificate of education (higher grade) 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;

• “covenant income” means the income net of tax at the basic rate 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(82) (interpretation), an education authority as defined in section 135(1) of the Education (Scotland) Act(83) (interpretation), an education and library board established under Article 3 of the Education and Libraries (Northern Ireland) Order 1986(84), any body which is a research council for the purposes of the Science and Technology Act 1965(85) 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;

• “grant income” means—

  (a)

  any income by way of a grant;

  (b)

  in the case of a student other than one to whom sub-paragraph (c) refers, any contribution which has been assessed whether or not it has been paid;

  (c)

  in the case of a student to whom paragraph 1, 2 or 7 of Schedule 1 applies (lone parent or disabled student), any contribution which has been assessed and which 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.

• “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 to the end;

  (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, 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;

• “periods of experience” has the meaning prescribed in paragraph 1(1) of Schedule 5 to the Education (Mandatory Awards) Regulations 1987(86);

• “sandwich course” has the meaning prescribed in paragraph 1(1) of Schedule 5 to the Education (Mandatory Awards) Regulations 1987;

• “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 1987 for such a student;

  (b)

  in the case of a student residing at his parents' home the amount specified in paragraph 3(2) thereof;

  (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 but under pensionable age 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 end 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

62.—(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 the amount of a student’s grant income any payment—

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

(b) intended to meet the cost of special equipment for a student on a course which began before 1st September 1986 in architecture, art and design, home economics, landscape architecture, medicine, music, ophthalmic optics, orthoptics, physical education, physiotherapy, radiography, occupational therapy, dental hygiene, dental therapy, remedial gymnastics, town and country planning and veterinary science or medicine;

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

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

(e) on account of the student maintaining a home at a place other than that at which he resides while attending his course but only to the extent that his rent or rates is not met by housing benefit;

(f) on account of any other person but only if that person is residing outside of the United Kingdom and there is no applicable amount in respect of him;

(g) intended to meet the cost of books and equipment (other than special equipment) or if not so intended an amount equal to £210 towards such costs;

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

(3) A student’s grant income shall be apportioned—

(a) subject to paragraph (4), 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) 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

63.—(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 for that period and any summer vacation immediately following 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 or, if there are 53 benefit weeks (including part weeks) in the year, 53; 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 62(2)(h) (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

64.—(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 62(2)(a) to (f), (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 62(2)(g) and (h) (calculation of grant income) had the student been in receipt of the standard maintenance grant;

(c) the balance, if any, shall be divided by 52 or, if there are 53 benefit weeks (including part weeks) in the year, 53 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 62(2)(a) to (f); 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 62(2)(g) and (h).

Relationship with amounts to be disregarded under Schedule 9

65.  No part of a student’s covenant income or grant income shall be disregarded under paragraph 15 of Schedule 9 (charitable and voluntary payments) and any other income shall only be disregarded thereunder if, and to the extent that, the amount disregarded under regulation 63(2)(b) (calculation of covenant income where a contribution is assessed) or, as the case may be, 64(1)(c) (covenant income where no grant income or no contribution is assessed) is less than £5.

Other amounts to be disregarded

66.—(1) For the purposes of ascertaining income other than grant income and covenant income, any amounts intended for any expenditure specified in regulation 62(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 62(2), 63(3) and 64(1)(a) or (b) (calculation of grant income and covenant income) on like expenditure.

(2) Where a claim is made in respect of any period in the normal summer vacation and any income is payable under a Deed of Covenant which commences or takes effect after the first day of that vacation, that income shall be disregarded.

Disregard of contribution

67.  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 contribution shall be disregarded for the purpose of calculating the income of the one liable to make that contribution.

Income treated as capital

68.  Any amount by way of a refund of tax deducted from a student’s income shall be treated as capital.

Disregard of changes occurring during summer vacation

69.  In calculating a student’s income an adjudication officer shall disregard 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 up to the end of that vacation.

PART VI URGENT CASES

Urgent cases

70.—(1) In a case to which this regulation applies, a claimant' weekly applicable amount and his income and capital shall be calculated in accordance with the following provisions of this Part.

(2) Subject to paragraph (4), this regulation applies to—

(a) a claimant to whom paragraph (3) (certain persons from abroad) applies;

(b) a claimant who is treated as possessing income under regulation 42 (3) (notional income);

(c) a claimant who or whose partner is a seasonal worker treated as possessing earnings under regulation 43 (seasonal workers).

(3) This paragraph applies to a person from abroad within the meaning of regulation 21 (3) (special cases) who—

(a) having, during any one period of limited leave of a kind referred to in sub-paragraph (a) of that definition (including any period as extended), supported himself without recourse to public funds other than any such recourse by reason of the previous application of this sub-paragraph, is temporarily without funds during that period of leave because remittances to him from abroad have been disrupted provided that there is a reasonable expectation that his supply of funds will be resumed;

(b) is awaiting the determination of an application made under section 3 of the 1971 Act(87) (general provisions for regulation and control) for his leave to remain in the United Kingdom to be varied so as to be leave under any provision in the immigration rules which does not refer to there being, or to there needing to be, no recourse to public funds or to there being no charge on public funds during that limited leave;

(c) is awaiting the outcome of an appeal made under Part II of the 1971 Act (including any period for which the appeal is treated as pending under section 33 (4) of that Act);

(d) is a person to whom sub-paragraph (b) of that definition applies who has applied for leave within the meaning of the 1971 Act to remain in the United Kingdom, being leave under any provision in the immigration rules which does not refer to there being, or to there needing to be, no recourse to public funds or to there being no charge on public funds during that leave and is awaiting the determination of that application;

(e) is a person to whom sub-paragraph (c) of that definition applies but whose removal from the United Kingdom has been deferred in writing by the Secretary of State;

(f) is a person, other than someone to whom sub-paragraph (c) of that definition applies, who has been granted permission to remain in the United Kingdom pending the removal of a person to whom sub-paragraph (e) applies;

(g) is a person who has no or no further right of appeal under the 1971 Act but has been allowed to remain in the United Kingdom while an application so to remain is, or representations on his behalf are, being considered by the Secretary of State;

(h) is a person to whom sub-paragraph (d) of that definition applies and who has been allowed to remain in the United Kingdom with the consent in writing of the Secretary of State;

(i) is a person to whom sub-paragraph (e), (f) or (g) of that definition applies and whose applicable amount, but for this sub-paragraph, would if calculated in accordance with regulation 21 (special cases) be nil;

(j) he is a person other than one to whom sub-paragraph (e) applies who is subject to a direction for his removal from the United Kingdom, but whose removal has been deferred in writing by the Secretary of State.

(4) This regulation shall only apply to a person to whom paragraph (2) (b) or (c) applies, where the income or earnings he is treated as possessing by virtue of regulation 42(3) (notional income) or regulation 43 (notional earnings of seasonal workers) is not readily available to him; and

(a) the amount of income support which would be payable but for this Part is less than the amount of income support payable by virtue of the provisions of this Part; and

(b) the adjudication officer is satisfied that, unless the provisions of this Part are applied to the claimant, the claimant or his family will suffer hardship.

Applicable amounts in urgent cases

71.—(1) For the purposes of calculating any entitlement to income support under this Part—

(a) except in a case to which sub-paragraph (b) or (c) applies, a claimant' weekly applicable amount shall be the aggregate of—

(i) 90 per cent of the amount applicable in respect of himself or, if he is a member of a couple or of a polygamous marriage, of the amount applicable in respect of both of them under paragraph 1 (1), (2) or (3) of Schedule 2 or, as the case may be, the amount applicable in respect of them under regulation 18 (polygamous marriages); and where regulation 22 (reduction in applicable amounts in certain cases of actual or notional unemployment benefit disqualification) applies, the reference in this head to 90 per cent of the amount applicable shall be construed as a reference to 90 per cent of the relevant amount under that regulation reduced by the percentage specified in paragraph (1) or (2), as the case may be, of that regulation;

(ii) the amount applicable under paragraph 2 of Schedule 2 in respect of any child or young person who is a member of his family except a child or young person whose capital, if calculated in accordance with Part V in like manner as for the claimant, except where otherwise provided, would exceed £3,000;

(iii) the amount, if applicable, specified in paragraph 15 (2) or (3) of Schedule 2 (pensioner premiums); and

(iv) any amounts applicable under regulation 17 (e) or 18 (f) (housing costs);

(b) where the claimant is a resident in board and lodging accommodation, a hostel, a residential care home or a nursing home, his weekly applicable amount shall be the aggregate of—

(i) 90 per cent of the amount of the allowance for personal expenses prescribed in paragraph 13 (a) of Schedule 4 (applicable amounts of persons in residential care and nursing homes) or paragraph 11 (b) of Schedule 5 (applicable amounts of persons in board and lodging accommodation or hostels) whichever is appropriate in respect of him or, if he is a member of a couple or of a polygamous marriage, of the amount applicable in respect of both or all of them; and where regulation 22 (reduction in applicable amounts in certain cases of actual or notional unemployment benefit disqualification) applies, the reference in this head to 90 per cent of the amount so reduced shall be construed as a reference to 90 per cent of the relevant amount under that regulation reduced by the percentage specified in paragraph (1) or (2), as the case may be, of that regulation;

(ii) the amount applicable under paragraph 13 (b) to (e) of Schedule 4 or paragraph 11 (c) to (f) of Schedule 5, whichever is appropriate, in respect of any child or young person who is a member of his family except a child or young person whose capital, if calculated in accordance with Part V in like manner as for the claimant, except where otherwise provided, would exceed £3,000;

(iii) the amount in respect of the weekly charge forhis accommodation calculated in accordance with regulation 19 and Schedule 4 or regulation 20 and Schedule 5 whichever is appropriate except any amount in respect of a child or young person who is a member of the family and whose capital, if calculated in accordance with Part V in like manner as for the claimant, except where otherwise provided, would exceed £3,000.

(c) where the claimant is resident in residential accommodation, his weekly applicable amount shall be the aggregate of—

(i) 90 per cent of the amount in respect of personal expenses as is referred to in column (2) of paragraph 13 (a) to (c) and (e) of Schedule 7 (applicable amounts in special cases) applicable to him;

(ii) the amount applicable under column (2) of paragraph 13 (d) of Schedule 7, in respect of any child or young person who is a member of his family except a child or young person whose capital, if calculated in accordance with Part V in like manner as for the claimant, except where otherwise provided, would exceed £3,000;

(iii) the amount, being 80 per cent of the sum referred to in column (2) of paragraph 13 (a) to (c) and (e) of Schedule 7 (applicable amounts in special cases), in respect of the cost of the residential accommodation.

(2) The period for which a claimant' weekly applicable amount is to be calculated in accordance with paragraph (1) where paragraph (3) of regulation 70 (urgent cases) applies shall be—

(a) in a case to which sub-paragraph (a) of paragraph (3) of that regulation applies, any period, or the aggregate of any periods, not exceeding 42 days during any one period of leave to which that regulation applies;

(b) in a case to which sub-paragraph (b) of paragraph (3) of that regulation applies—

(i) the period ending not later than the date on which that determination is sent to the claimant; or

(ii) if he has a right to appeal against the determination under Part II of the 1971 Act, the period ending not later than 28 days after the date on which that determination is sent to him;

(c) in a case to which sub-paragraph (c) of paragraph (3) of that regulation applies, the period ending not later than the end of the period for which that appeal is treated as pending under section 33 (4) of the 1971 Act;

(d) in a case to which sub-paragraph (d) of paragraph (3) of that regulation applies, the period ending not later than—

(i) where the application referred to in that regulation is successful, the date on which that determination is sent to the claimant; or

(ii) where that application is refused, the date on which he is removed from the United Kingdom;

(e) in any case to which sub-paragraph (e), (f), (g), (h) or (j) of paragraph (3) of that regulation applies, the period ending not later than—

(i) the date on which the claimant is removed from the United Kingdom; or

(ii) where given leave (within the meaning of section33 of the 1971 Act) to remain in the United Kingdom, or otherwise permitted in writing by the Secretary of State to remain in the United Kingdom, the date on which that leave was given;

(f) in a case to which sub-paragraph (i) of paragraph (3) of that regulation applies, the period ending not later than the date on which—

(i) leave (within the meaning of section 33 of the 1971 Act) is granted; or

(ii) he is removed from the United Kingdom; or

(iii) his immigration status is determined by the Secretary of State,

Assessment of income and capital in urgent cases

72.—(1) The claimant' income shall be calculated in accordance with Part V subject to the following modifications—

(a) any income possessed or treated as possessed by him shall be taken into account in full notwithstanding any provision in that Part disregarding the whole or any part of that income;

(b) any income to which regulation 53 (calculation of tariff income from capital) applies shall be disregarded;

(c) income treated as capital by virtue of regulations 24 (1) and (2) (treatment of charitable or voluntary payments) and 48 (1), (2) and (3) (income treated as capital) shall be taken into account as income;

(d) in a case to which paragraph (2) (b) of regulation 70 (urgent cases) applies, any income to which regulation 42 (3) (notional income) applies shall be disregarded;

(e) in a case to which paragraph (2) (c) of regulation 70 applies, any income to which regulation 43 (seasonal workers) applies shall be disregarded.

(2) The claimant' capital calculated in accordance with Part V, but including any capital referred to in paragraphs 3 and, to the extent that such assets as are referred to in paragraph 6 consist of liquid assets, 6 and 7 and 9 (b) of Schedule 10 (capital to be disregarded) shall be taken into account in full and the amount of income support which would, but for this paragraph be payable under this regulation, shall be payable only to the extent that it exceeds the amount of that capital.

Secretary of State for Social Services

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