The Council Tax Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006

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"the Administration Act" means the Social Security Administration Act 1992[5];

"the 1973 Act" means the Employment and Training Act 1973[6];

"the 1992 Act" means the Local Government Finance Act 1992;

"Abbeyfield Home" means an establishment run by the Abbeyfield Society including all bodies corporate or incorporate which are affiliated to that Society;

"adoption leave" means a period of absence from work on ordinary or additional adoption leave by virtue of section 75A or 75B of the Employment Rights Act 1996[7];

"alternative maximum council tax benefit" means the amount determined in accordance with regulation 46 and Schedule 6;

"appropriate DWP office" means an office of the Department for Work and Pensions dealing with state pension credit or an office which is normally open to the public for the receipt of claims for income support or a jobseeker's allowance;

"assessment period" means the period determined—

(a) in relation to the earnings of a self-employed earner, in accordance with regulation 27 for the purpose of calculating the weekly earnings of the claimant; or

(b) in relation to any other income, in accordance with regulation 23 for the purpose of calculating the weekly income of the claimant;

"attendance allowance" means—

(a) an attendance allowance under Part 3 of the Act;

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

(c) a payment under regulations made in exercise of the power conferred by paragraph 7(2)(b) of Part 2 of Schedule 8 to the Act[8];

(d) an increase of an allowance which is payable in respect of constant attendance under paragraph 4 of Part 1 of Schedule 8 to the Act;

(e) a payment by virtue of article 14, 15, 16, 43 or 44 of the Personal Injuries (Civilians) Scheme 1983[9] or any analogous payment; or

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

"the benefit Acts" means the Act, the Jobseekers Act[10] and the State Pension Credit Act;

"benefit week" means a period of 7 consecutive days commencing upon a Monday and ending on a Sunday;

"board and lodging accommodation" means accommodation provided to a person or, if he is a member of a family, to him or any other member of his family, for a charge which is inclusive of the provision of that accommodation and at least some cooked or prepared meals which both are cooked or prepared (by a person other than the person to whom the accommodation is provided or a member of his family) and are consumed in that accommodation or associated premises;

"care home" in England and Wales has the meaning assigned to it by section 3 of the Care Standards Act 2000[11] and in Scotland means a care home service within the meaning assigned to it by section 2(3) of the Regulation of Care (Scotland) Act 2001[12];

"carer's allowance" means carer's allowance under section 70 of the Act[13];

"child" means a person under the age of 16;

"child tax credit" means a child tax credit under section 8 of the Tax Credits Act;

"the Children Order" means the Children (Northern Ireland) Order 1995[14];

"claim" means a claim for council tax benefit;

"claimant" means a person claiming council tax benefit;

"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 if any of the preceding persons is one member of a 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 are charged;

"the Consequential Provisions Regulations" means the Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006[15];

"council tax benefit" means council tax benefit under Part 7 of the Act;

"couple" means—

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

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

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

(d) two people of the same sex who are not civil partners of each other but are living together as if they were civil partners,

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

"course of study" means any course of study, whether or not it is a sandwich course and whether or not a grant is made for undertaking or attending it;

"date of claim" means the date on which the claim is made, or treated as made, for the purposes of regulation 53 (time and manner in which claims are to be made);

"the Decisions and Appeals Regulations" means the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001[16];

"designated authority" means any of the following—

(a) the Secretary of State;

(b) a person providing services to the Secretary of State;

(c) a local authority;

(d) a person providing services to, or authorised to exercise any functions of, any such authority;

"designated office" means the office designated by the relevant authority for the receipt of claims to council tax benefit—

(a) by notice upon or with a form approved by it for the purpose of claiming council tax benefit; or

(b) by reference upon or with such a form to some other document available from it and sent by electronic means or otherwise on application and without charge; or

(c) by any combination of the provisions set out in sub-paragraphs (a) and (b) above;

"disability living allowance" means a disability living allowance under section 71 of the Act;

"dwelling" has the same meaning in section 3 or 72 of the 1992 Act;

"earnings" has the meaning prescribed in regulation 25 or, as the case may be, 28;

"the Eileen Trust" means the charitable trust of that name established on 29th March 1993 out of funds provided by the Secretary of State for the benefit of persons eligible for payment in accordance with its provisions;

"employed earner" is to be construed in accordance with section 2(1)(a) of the Act and also includes a person who is in receipt of a payment which is payable under any enactment having effect in Northern Ireland and which corresponds to statutory sick pay or statutory maternity pay;

"extended payment (severe disablement allowance and incapacity benefit)" means council tax benefit allowed pursuant to regulation 44;

"family" has the meaning assigned to it by section 137(1) of the Act;

"the Fund" means moneys made available from time to time by the Secretary of State for the benefit of persons eligible for payment in accordance with the provisions of a scheme established by him on 24th April 1992 or, in Scotland, on 10th April 1992;

"gateway office" means an appropriate DWP office or an office designated by the appropriate authority which is nominated by the Secretary of State as a gateway office and referred to in a notice upon or attached to a form approved by the appropriate authority for the purpose of claiming council tax benefit;

"guarantee credit" is to be construed in accordance with sections 1 and 2 of the State Pension Credit Act;

"a guaranteed income payment" means a payment made under article 14(1)(b) or article 21(1)(a) of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2005[17];

"housing benefit" means housing benefit under Part 7 of the Act;

"the Housing Benefit Regulations" means the Housing Benefit Regulations 2006[18];

"Immigration and Asylum Act" means the Immigration and Asylum Act 1999[19];

"an income-based jobseeker's allowance" and "a joint-claim jobseeker's allowance" have the same meaning as they have in the Jobseekers Act by virtue of section 1(4) of that Act;

"Income Support Regulations" means the Income Support (General) Regulations 1987[20];

"independent hospital" in England and Wales has the meaning assigned to it by section 2 of the Care Standards Act 2000 and in Scotland means an independent healthcare service as defined in section 2(5)(a) and (b) of the Regulation of Care (Scotland) Act 2001;

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

"the Independent Living Funds" means the Independent Living Fund, the Independent Living (Extension) Fund and the Independent Living (1993) Fund;

"the Independent Living (Extension) Fund" means the Trust of that name established by a deed dated 25th February 1993 and made between the Secretary of State for Social Security of the one part and Robin Glover Wendt and John Fletcher Shepherd of the other part;

"the Independent Living (1993) Fund" means the Trust of that name established by a deed dated 25th February 1993 and made between the Secretary of State for Social Security of the one part and Robin Glover Wendt and John Fletcher Shepherd of the other part;

"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;

"Jobseekers Act" means the Jobseekers Act 1995[21];

"Jobseeker's Allowance Regulations" means the Jobseeker's Allowance Regulations 1996[22];

"The London Bombing Relief Charitable Fund" means the company limited by guarantee (number 5505072) and registered charity of that name established on 11th July 2005 for the purpose of (amongst other things) relieving sickness, disability or financial need of victims (including families or dependants of victims) of the terrorist attacks carried out in London on 7th July 2005;

"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;

"lower rate" where it relates to rates of tax has the same meaning as in the Income and Corporation Taxes Act 1988[23] by virtue of section 832(1) of that Act;

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

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

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

"maternity leave" means a period during which a woman is absent from work because she is pregnant or has given birth to a child, and at the end of which she has a right to return to work either under the terms of her contract of employment or under Part 8 of the Employment Rights Act 1996[24];

"member of a couple" means a member of a married or unmarried couple;

"mobility supplement" means a supplement to which paragraph 5(1)(a)(v) of Schedule 2 refers;

"net earnings" means such earnings as are calculated in accordance with regulation 26;

"net profit" means such profit as is calculated in accordance with regulation 29;

"non-dependant" has the meaning prescribed in regulation 3;

"non-dependant deduction" means a deduction that is to be made under regulation 42;

"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—

(a) where a claimant is a member of a couple, the other member of that couple; or

(b) where a claimant is polygamously married to two or more members of his household, any such member to whom he is married;

"paternity leave" means a period of absence from work on leave by virtue of section 80A or 80B of the Employment Rights Act 1996[25];

"payment" includes part of a payment;

"pension fund holder" means with respect to a personal pension scheme or retirement annuity contract, the trustees, managers or scheme administrators, as the case may be, of the scheme or contract concerned;

"person affected" shall be construed in accordance with regulation 3 of the Decisions and Appeals Regulations;

"person on income support" means a person in receipt of income support;

"person on state pension credit" means a person in receipt of state pension credit;

"personal pension scheme" has the same meaning as in section 1 of the Pension Schemes Act 1993[26] and, in the case of a self-employed earner, includes a scheme approved by the Commissioners for Her Majesty's Revenue and Customs under Chapter 4 of Part 14 of the Income and Corporation Taxes Act 1988;

"policy of life insurance" means any instrument by which the payment of money is assured on death (except death by accident only) or by 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 to which section 133(1) of the Act refers;

"qualifying age for state pension credit" means (in accordance with section 1(2)(b) and (6) of the State Pension Credit Act)—

(a) in the case of a woman, pensionable age; or

(b) in the case of a man, the age which is pensionable age in the case of a woman born on the same day as the man;

"qualifying course" means a qualifying course as defined for the purposes of Parts 2 and 4 of the Jobseeker's Allowance Regulations;

"qualifying person" means a person in respect of whom payment has been made from the Fund, the Eileen Trust; the Skipton Fund or the London Bombings Relief Charitable Fund;

"relative" means a close relative, grandparent, grandchild, uncle, aunt, nephew or niece;

"relevant authority" means an authority administering council tax benefit;

"remunerative work" has the meaning prescribed in regulation 6;

"rent" means "eligible rent" to which regulation 12 of the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006 refers, less any deductions in respect of non-dependants which fall to be made under regulation 55 (non-dependant deductions) of those Regulations;

"resident" has the meaning it has in Part 1 or 2 of the 1992 Act;

"retirement annuity contract" means a contract or trust scheme approved under Chapter 3 of Part 14 of the Income and Corporation Taxes Act 1988;

"sandwich course" has the meaning given in regulation 5(2) of the Education (Student Support) Regulations 2002[27], regulation 5(2) of the Education (Student Loans)(Scotland) Regulations 2000[28] or regulation 5(2) of the Education (Student Support) Regulations (Northern Ireland)2001[29], as the case may be;

"savings credit" shall be construed in accordance with sections 1 and 3 of the State Pension Credit Act;

"second adult" has the meaning given to it in Schedule 6;

"self-employed earner" is to be construed in accordance with section 2(1)(b) of the Act;

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

"the Skipton Fund" means the ex-gratia payment scheme administered by the Skipton Fund Limited, incorporated on 25th March 2004, for the benefit of certain persons suffering from hepatitis C and other persons eligible for payment in accordance with the scheme's provisions;

"sports award" means an award made by one of the Sports Councils named in section 23(2) of the National Lottery etc Act 1993[30] out of sums allocated to it for distribution under that section;

"State Pension Credit Act" means the State Pension Credit Act 2002[31];

"student" means a person, other than a person in receipt of a training allowance, who is attending or undertaking—

(a) a course of study at an educational establishment; or

(b) a qualifying course;

"tax year" means a period beginning with 6th April in one year and ending with 5th April in the next;

"the Tax Credits Act" means the Tax Credits Act 2002[32];

"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 Secretary of State, Scottish Enterprise or Highlands and Islands Enterprise, the Learning and Skills Council for England or the National Assembly for Wales;

(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 the Secretary of State, Scottish Enterprise or Highlands and Islands Enterprise or the National Assembly for Wales,

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, other than under arrangements made under section 2 of the 1973 Act[33] or is training as a teacher;

"the Trusts" means the Macfarlane Trust, the Macfarlane (Special Payments) Trust and the Macfarlane (Special Payments) (No. 2) Trust;

"voluntary organisation" means a body, other than a public or local authority, the activities of which are carried on otherwise than for profit;

"war widower's pension" means any widower's pension or allowance granted in respect of a death due to service or war injury and payable by virtue of the Air Force (Constitution) Act 1917[34], the Personal Injuries (Emergency Provisions) Act 1939[35], the Pensions (Navy, Army, Air Force and Mercantile Marine) Act 1939[36], the Polish Resettlement Act 1947[37] or Part 7 or section 151 of the Reserve Forces Act 1980[38] or a pension or allowance for a widower granted under any scheme mentioned in section 641(1)(e) or (f) of the Income Tax (Earnings & Pensions) Act 2003[39];

"water charges" means—

(a) as respects England and Wales, any water and sewerage charges under Chapter 1 of Part 5 of the Water Industry Act 1991[40];

(b) as respects Scotland, any water and sewerage charges established by Scottish Water under a charges scheme made under section 29A of the Water Industry (Scotland) Act 2002[41],

in so far as such charges are in respect of the dwelling which a person occupies as his home;

"working tax credit" means a working tax credit under section 10 of the Tax Credits Act;

"Working Tax Credit Regulations" means the Working Tax Credit (Entitlement and Maximum Rate) Regulations 2002[42];

"young person" has the meaning prescribed in regulation 9(1).

    (2) In these Regulations, references to a claimant occupying a dwelling or premises as his home shall be construed in accordance with regulation 7 of the Housing Benefit Regulations.

    (3) In these Regulations, where an amount is to be rounded to the nearest penny, a fraction of a penny shall be disregarded if it is less than half a penny and shall otherwise be treated as a whole penny.

    (4) For the purpose of these Regulations, a person is on an income-based jobseeker's allowance on any day in respect of which an income-based jobseeker's allowance is payable to him and on any day—

(a) in respect of which he satisfies the conditions for entitlement to an income-based jobseeker's allowance but where the allowance is not paid in accordance with section 19 or 20A of the Jobseekers Act[43] (circumstances in which a jobseeker's allowance is not payable); or

(b) which is a waiting day for the purposes of paragraph 4 of Schedule 1 to that Act and which falls immediately before a day in respect of which an income-based jobseeker's allowance is payable to him or would be payable to him but for section 19 or 20A of that Act;

(c) in respect of which he is a member of a joint-claim couple for the purposes of the Jobseekers Act and no joint-claim jobseeker's allowance is payable in respect of that couple as a consequence of either member of that couple being subject to sanctions for the purposes of section 20A of that Act;

(d) in respect of which an income-based jobseeker's allowance or a joint-claim jobseeker's allowance would be payable but for a restriction imposed pursuant to section 62 or 63 of the Child Support, Pensions and Social Security Act 2000[44] or section 7, 8 or 9 of the Social Security Fraud Act 2001[45] (loss of benefit provisions).

    (5) For the purposes of these Regulations, two persons shall be taken to be estranged only if their estrangement constitutes a breakdown of the relationship between them.

    (6) In these Regulations references to any person in receipt of a guarantee credit, a savings credit or state pension credit includes a reference to a person who would be in receipt thereof but for regulation 13 of the State Pension Credit Regulations 2002[46] (small amounts of state pension credit).

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 or with whom a claimant normally resides.

    (2) This paragraph applies to—

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

(b) if the claimant is polygamously married, any partner of his and any child or young person who is a member of his household and for whom he or one of his partners is responsible;

(c) a child or young person who is living with the claimant but who is not a member of his household by virtue of regulation 11 (membership of the same household);

(d) subject to paragraph (3), any person who, with the claimant, is jointly and severally liable to pay council tax in respect of a dwelling for any day under sections 6, 7 or 75 of the 1992 Act (persons liable to pay council tax);

(e) subject to paragraph (3), any person who is liable to make payments on a commercial basis to the claimant or the claimant's partner in respect of the occupation of the dwelling;

(f) 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 organisation which makes a charge to the claimant or his partner for the services provided by that person.

    (3) Excepting persons to whom paragraph (2)(a) to (c) and (f) refer, a person to whom any of the following sub-paragraphs applies shall be a non-dependant—

(a) a person who resides with the person to whom he is liable to make payments in respect of the dwelling and either—


(i) that person is a close relative of his or his partner; or

(ii) the tenancy or other agreement between them is other than on a commercial basis;



(b) a person whose liability to make payments in respect of the dwelling appears to the relevant authority to have been created to take advantage of the council tax benefit scheme except someone who was, for any period within the eight weeks prior to the creation of the agreement giving rise to the liability to make such payments, otherwise liable to make payments of rent in respect of the same dwelling;

(c) a person who becomes jointly and severally liable with the claimant for council tax in respect of a dwelling and who was, at any time during the period of eight weeks prior to his becoming so liable, a non-dependant of one or more of the other residents in that dwelling who are so liable for the tax, unless the relevant authority is satisfied that the change giving rise to the new liability was not made to take advantage of the council tax benefit scheme.

Section 1(1A) of the Administration Act disapplied
     4. Section 1(1A) of the Administration Act (requirement to state national insurance number) shall not apply in the case of a child or young person in respect of whom council tax benefit is claimed.

Application of Regulations
     5. —(1) Except as provided in paragraph (2), these Regulations apply in relation to a person who has attained the qualifying age for state pension credit.

    (2) These Regulations shall not apply in relation to any person if he or, if he has a partner, his partner, is a person on income support or on an income-based jobseeker's allowance.

Remunerative work
     6. —(1) Subject to the following provisions of this regulation, a person shall be treated for the purposes of these Regulations as engaged in remunerative work if he is engaged, or, where his hours of work fluctuate, he is engaged on average, for not less than 16 hours a week, in work for which payment is made or which is done in expectation of payment.

    (2) Subject to paragraph (3), in determining the number of hours for which a person is engaged in work where his hours of work fluctuate, regard shall be had to the average of hours worked over—

(a) 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);

(b) in any other case, the period of 5 weeks immediately prior to the date of claim, or such other length of time as may, in the particular case, enable the person's weekly average hours of work to be determined more accurately.

    (3) Where, for the purposes of paragraph (2)(a), a person's recognisable cycle of work at a school, other educational establishment or other place of employment is one year and includes periods of school holidays or similar vacations during which he does not work, those periods and any other periods not forming part of such holidays or vacations during which he is not required to work shall be disregarded in establishing the average hours for which he is engaged in work.

    (4) Where no recognisable cycle has been established in respect of a person's work, regard shall be had to the number of hours or, where those hours will fluctuate, the average of the hours, which he is expected to work in a week.

    (5) 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.

    (6) A person on income support or an income-based jobseeker's allowance for more than 3 days in any benefit week shall be treated as not being engaged in remunerative work in that week.

    (7) A person shall not be treated as engaged in remunerative work on any day on which the person is on maternity leave, paternity leave or adoption leave, or is absent from work because he is ill.

    (8) A person shall not be treated as engaged in remunerative work on any day on which he is engaged in an activity in respect of which—

(a) a sports award has been made, or is to be made, to him; and

(b) no other payment is made or is expected to be made to him.

Persons from abroad
     7. —(1) A person from abroad is a person of a prescribed class for the purposes of section 131(3)(b) of the Act but this paragraph shall not have effect in respect of a person to whom and for a period to which regulation 7A and Schedule A1[47] apply.

    (2) In paragraph (1) "person from abroad" also means any person other than a person to whom paragraph (4) applies who is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland, but for this purpose no person shall be treated as not habitually resident in the United Kingdom who is—

(a) a worker for the purposes of Council Regulation (EEC) No 1612/68 or (EEC) No 1251/70 or a person with a right to reside in the United Kingdom pursuant to Council Directive No 68/360/EEC or No 73/148/EEC or a person who is an accession State worker requiring registration who is treated as a worker for the purpose of the definition of "qualified person" in regulation 5(1) of the Immigration (European Economic Area) Regulations 2000[48] pursuant to regulation 5 of the Accession (Immigration and Worker Registration) Regulations 2004[49]; or

(b) a refugee; or

(c) a person who has been granted exceptional leave to enter the United Kingdom by an immigration officer within the meaning of the Immigration Act 1971, or to remain in the United Kingdom by the Secretary of State; or

(d) a person who is not a person subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act and who is in the United Kingdom as a result of his deportation, expulsion or other removal by compulsion of law from another country to the United Kingdom.

    (3) In this regulation, for the purposes of the definition of a person from abroad no person shall be treated as habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland if he does not have a right to reside in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland.

    (4) This paragraph applies to a person who—

(a) is on state pension credit; or

(b) is in Great Britain and who left the territory of Montserrat after 1st November 1995 because of the effect on that territory of a volcanic eruption.

    (5) Paragraph 1 of Part 1 of the Schedule to, and regulation 2 as it applies to that paragraph of, the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000[50] shall not apply to a person who has been temporarily without funds for any period, or the aggregate of any periods, exceeding 42 days during any one period of limited leave (including any such period as extended).

    (6) In this regulation—

"a European Economic Area State" means a Member State or Norway, Sweden, Iceland, Austria or Finland;

"refugee" in this regulation, regulation 7A (entitlement of a refugee to council tax benefit) and Schedule A1[51] (treatment of claims for council tax benefit by refugees), means a person recorded by the Secretary of State as a refugee within the definition in Article 1 of the Convention relating to the Status of Refugees[52].

Prescribed persons for the purposes of section 131(3)(b) of the Act
     8. —(1) Subject to paragraph (2), a person who is throughout any day referred to in section 131(3)(a) of the Act absent from the dwelling referred to in that section, shall be a prescribed person for the purposes of section 131(3)(b) of the Act in relation to that day.

    (2) A person shall not, in relation to any day which falls within a period of temporary absence from that dwelling, be a prescribed person under paragraph (1).

    (3) In paragraph (2), a "period of temporary absence" means—

(a) a period of absence not exceeding 13 weeks, beginning with the first whole day on which a person resides in residential accommodation where and for so long as—


(i) the person resides in that accommodation;

(ii) the part of the dwelling in which he usually resided is not let or sub-let; and

(iii) that period of absence does not form part of a longer period of absence from the dwelling of more than 52 weeks,



where he has entered the accommodation for the purpose of ascertaining whether it suits his needs and with the intention of returning to the dwelling if it proves not to suit his needs;

(b) a period of absence not exceeding 13 weeks, beginning with the first whole day of absence from the dwelling, where and for so long as—



(i) the person intends to return to the dwelling;

(ii) the part of the dwelling in which he usually resided is not let or sub-let; and

(iii) that period is unlikely to exceed 13 weeks; and



(c) a period of absence not exceeding 52 weeks, beginning with the first whole day of that absence, where and for so long as—



(i) the person intends to return to the dwelling;

(ii) the part of the dwelling in which he usually resided is not let or sub-let;

(iii) the person is a person to whom paragraph (4) applies; and

(iv) the period of absence is unlikely to exceed 52 weeks or, in exceptional circumstances, is unlikely substantially to exceed that period.

    (4) This paragraph applies to a person who—

(a) is detained in custody on remand pending trial or required, as a condition of bail, to reside—


(i) in a dwelling, other than the dwelling referred to in paragraph (1); or

(ii) in premises approved under section 9 of the Criminal Justice and Court Services Act 2000[53];



or, is detained in custody pending sentence upon conviction;

(b) is resident in a hospital or similar institution as a patient;

(c) is undergoing, or his partner or his dependent child is undergoing, in the United Kingdom or elsewhere, medical treatment, or medically approved convalescence, in accommodation other than residential accommodation;

(d) is following, in the United Kingdom or elsewhere, a training course;

(e) is undertaking medically approved care of a person residing in the United Kingdom or elsewhere;

(f) is undertaking the care of a child whose parent or guardian is temporarily absent from the dwelling normally occupied by that parent or guardian for the purpose of receiving medically approved care or medical treatment;

(g) is, in the United Kingdom or elsewhere, receiving medically approved care provided in accommodation other than residential accommodation;

(h) is a student;

(i) is receiving care provided in residential accommodation other than a person to whom paragraph (3)(a) applies; or

(j) has left the dwelling he resides in through fear of violence, in that dwelling, or by a person who was formerly a member of the family of the person first mentioned.

    (5) This paragraph applies to a person who is—

(a) detained in custody pending sentence upon conviction or under a sentence imposed by a court (other than a person who is detained in hospital under the provisions of the Mental Health Act 1983[54], or, in Scotland, under the provisions of the Mental Health (Care and Treatment) (Scotland) Act 2003[55] or the Criminal Procedure (Scotland) Act 1995[56]); and

(b) on temporary release from detention in accordance with Rules made under the provisions of the Prison Act 1952[57] or the Prisons (Scotland) Act 1989[58].

    (6) Where paragraph (5) applies to a person, then, for any day when he is on temporary release—

(a) if such temporary release was immediately preceded by a period of temporary absence under paragraph (3)(b) or (c), he shall be treated, for the purposes of paragraph (1), as if he continues to be absent from the dwelling, despite any return to the dwelling;

(b) for the purposes of paragraph (4)(a), he shall be treated as if he remains in detention;

(c) if he does not fall within sub-paragraph (a), he shall be a prescribed person for the purposes of section 131(3)(b) of the Act.

    (7) In this regulation—

"medically approved" means certified by a medical practitioner;

"patient" means a person who is undergoing medical or other treatment as an in-patient in any hospital or similar institution;

"residential accommodation" means accommodation which is provided—

(a) in a care home;

(b) in an independent hospital;

(c) in an Abbeyfield Home; or

(d) in an establishment managed or provided by a body incorporated by Royal Charter or constituted by Act of Parliament other than a local social services authority;

"training course" means a course of training or instruction provided wholly or partly by or on behalf of or in pursuance of arrangements made with, or approved by or on behalf of, Scottish Enterprise, Highlands and Islands Enterprise, a government department or the Secretary of State.

(a) on income support or an income-based jobseeker's allowance;

(b) receiving advanced education within the meaning of regulation 12(2) of the Income Support Regulations[59] (relevant education); or

(c) a person to whom section 6 of the Children (Leaving Care) Act 2000[60] (exclusion from benefits) applies.

    (3) A person of a prescribed description for the purposes of section 137(1) of the Act as it applies to council tax benefit (definition of the family) includes a child or young person in respect of whom section 145A of the Act[61] applies for the purposes of entitlement to child benefit but only for the period prescribed under section 145A(1) of the Act.

Circumstances in which a person is to be treated as responsible or not responsible for another
     10. —(1) Subject to the following provisions of this regulation a person shall be treated as responsible for a child or young person who is normally living with him this includes a child or young person to whom paragraph (3) of regulation 9 applies.

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

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

(b) if there is no such person—


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

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

    (3) For the purposes of these Regulations a child or young person shall be 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
     11. —(1) Subject to paragraphs (2) and (3), the claimant and any partner and, where the claimant or his partner is treated as responsible by virtue of regulation 10 (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 notwithstanding that any of them is temporarily absent from that household.

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

(a) placed with the claimant or his partner by a local authority under section 23(2)(a) of the Children Act 1989[62] or by a voluntary organisation under section 59(1)(a) of that Act, or in Scotland boarded out with the claimant or his partner under a relevant enactment; or

(b) placed, or in Scotland boarded out, with the claimant or his partner prior to adoption; or

(c) placed for adoption with the claimant or his partner in accordance with the Adoption and Children Act 2002[63] or the Adoption Agencies (Scotland) Regulations 1996[64].

    (3) Subject to paragraph (4), paragraph (1) shall not apply to a child or young person who is not living with the claimant and he—

(a) is being looked after by, or in Scotland is in the care of, a local authority under a relevant enactment; or

(b) has been placed, or in Scotland boarded out, with a person other than the claimant prior to adoption; or

(c) has been placed for adoption pursuant to a decision under the Adoption Agencies Regulations 1983 or the Adoption Agencies (Scotland) Regulations 1996.

    (4) An authority shall treat a child or young person to whom paragraph (3)(a) applies as being a member of the claimants' household in any benefit week where—

(a) that child or young person lives with the claimant for part or all of that benefit week; and

(b) the authority considers that it is reasonable to do so taking into account the nature and frequency of that child's or young person's visits.

    (5) In this regulation "relevant enactment" means the Army Act 1955[65], the Air Force Act 1955[66], the Naval Discipline Act 1957[67], the Matrimonial Proceedings (Children) Act 1958[68], the Social Work (Scotland) Act 1968[69], the Family Law Reform Act 1969[70], the Children and Young Persons Act 1969[71], the Matrimonial Causes Act 1973[72], the Children Act 1975[73], the Domestic Proceedings and Magistrates' Courts Act 1978[74], the Adoption (Scotland) Act 1978[75], the Family Law Act 1986[76], the Children Act 1989[77] and the Children (Scotland) Act 1995[78].

(a) an amount in respect of his personal allowance, determined in accordance with paragraph 1 of Schedule 1;

(b) an amount in respect of any child or young person who is a member of his family, determined in accordance with paragraph 2 of that Schedule;

(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 paragraph 3(1) of Part 2 of that Schedule (family premium);

(d) if he is a member of a family of which one member is a child under the age of one year, an additional amount determined in accordance with paragraph 3(2) of Part 2 of that Schedule;

(e) the amount of any premiums which may be applicable to him, determined in accordance with Parts 3 and 4 of that Schedule (premiums).

    (2) Paragraph (3) applies in the case of—

(a) a claimant who; or

(b) a claimant who has a partner one or both of whom; or

(c) a claimant who is a member of a polygamous marriage one or more of whose members,

is or are a patient, and has or have been a patient for a period exceeding 52 weeks ("long term patient").

    (3) In the case of a claimant to whom this paragraph applies and who—

(a) has no partner and is not a loan parent, the applicable amount shall be equal to 20 per cent. of the weekly rate of the basic pension for the time being specified in section 44(4) of the Act ("the standard reduction");

(b) is a lone parent, the applicable amount shall be an amount equal to the standard reduction, increased by such of the amounts specified in sub-paragraph (b) to (e) of paragraph (1) as apply in his case;

(c) has a partner and either the claimant or his partner is a long term patient, the applicable amount determined in accordance with paragraph (1) shall be reduced by an amount equal to the standard reduction;

(d) has a partner and both the claimant and his partner are long term patients, the applicable amount determined in accordance with paragraph (1) shall be reduced by an amount equal to twice the sum of the standard reduction;

(e) is a member of a polygamous marriage and one or more members of the marriage are long term patients, the applicable amount determined in accordance with paragraph (1) shall be reduced by an amount equal to the standard reduction multiplied by the number of members who are long term patients.

    (4) Any calculation made for the purposes of sub-paragraphs (2) and (3) shall be rounded to the nearest 5 pence, 2.5 pence being rounded to the next 5 pence above.

    (5) In this regulation and in Schedule 1, "patient" means a person (other than a person who is serving a sentence of imprisonment or detention in a youth custody institution) who is regarded as receiving free in-patient treatment within the meaning of the Social Security (Hospital In-Patients) Regulations 1975[80].

    (6) In Schedule 1, "additional spouse" means a spouse of either party to the marriage who is additional to the other party to the marriage.

    (7) For the purposes of calculating the period of 52 weeks referred to in paragraph (2), where a person has been maintained free of charge while undergoing medical or other treatment as an in-patient in a hospital or similar institution within the meaning of that paragraph for two or more distinct periods separated by one or more intervals each not exceeding 28 days, he shall be treated as having been so maintained for a period equal in duration to the total of those distinct periods.

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

Circumstances in which income of non-dependant is to be treated as claimant's
     14. —(1) Where it appears to the relevant authority that a non-dependant and the claimant have entered into arrangements in order to take advantage of the council tax benefit scheme and the non-dependant has more capital and income than the claimant, that authority shall treat the claimant as possessing capital and income belonging to that non-dependant and, in such a case, shall disregard any capital and income which the claimant does possess.

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

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

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

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

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

(a) if the claimant is allowed council tax benefit or claimed council tax benefit, within the two working days following the day the calculation or estimate was determined, or as soon as reasonably practicable thereafter; or

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

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

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

(a) the amount of any savings credit payable;

(b) in respect of any dependent children of the claimant, child care charges taken into account under regulation 20(1)(c);

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


(i) lone parent's earnings; or

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


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

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



(d) any amount to be disregarded by virtue of paragraph 9(1) of Schedule 2;

(e) the income and capital of any partner of the claimant who is treated as a member of the claimant's household under regulation 11, to the extent that it is not taken into account in determining the net income of the person claiming state pension credit;

(f) regulation 14 (circumstances in which income of a non-dependant is to be treated as claimant's), if the relevant authority determines that this provision applies in the claimant's case;

(g) any modification under section 139(6) of the Administration Act (modifications by resolution of an authority) which is applicable in the claimant's case.

    (5) Regulations 19 to 39 shall not apply to the amount of the net income to be taken into account by the local authority under paragraph (1), but shall apply (so far as relevant) for the purpose of determining any modifications which fall to be made to that amount under paragraph (4).

    (6) The relevant authority shall for the purpose of determining the claimant's entitlement to council tax benefit use, except where paragraphs (7) and (8) apply, the calculation of the claimant's capital made by the Secretary of State, and shall in particular apply the provisions of regulation 33 if the claimant's capital is calculated as being in excess of £16,000.

    (7) If paragraph (8) applies, the relevant authority shall calculate the claimant's capital in accordance with regulations 33 to 39 below.

    (8) This paragraph applies if—

(a) the Secretary of State notifies the relevant authority that the claimant's capital has been determined as being £16,000 or less;

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

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

Calculation of income and capital where state pension credit is not payable
     18. Where neither regulation 16 nor 17 applies in the claimant's case, his income and capital shall be calculated or estimated by the relevant authority in accordance with regulations 19 to 39 below.

Meaning of "income"
     19. —(1) For the purposes of these Regulations, "income" means income of any of the following descriptions—

(a) earnings;

(b) working tax credit;

(c) retirement pension income within the meaning of the State Pension Credit Act[81];

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

(e) a war disablement pension or war widow's or widower'' pension;

(f) a foreign war disablement pension or war widow's or widower's pension;

(g) a guaranteed income payment;

(h) a payment made under article 21(1)(c) of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2005[82] but only where the condition referred to in article 23(2)(c) is met;

(i) income from capital other than capital disregarded under Part 1 of Schedule 4;

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


(i) disability living allowance;

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

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

(iv) a payment under regulations made in exercise of the power conferred by paragraph 7(2)(b) of Part 2 of Schedule 8 to the Act[83];

(v) an increase of an allowance payable in respect of constant attendance under paragraph 4 of Part 1 of Schedule 8 to the Act;

(vi) child benefit;

(vii) any guardian's allowance payable under section 77 of the Act;

(viii) any increase for a dependant, other than the claimant's partner, payable in accordance with Part 4 of the Act;

(ix) any social fund payment made under Part 8 of the Act;

(x) Christmas bonus payable under Part 10 of the Act;

(xi) housing benefit;

(xii) council tax benefit;

(xiii) bereavement payment[84];

(xiv) statutory sick pay;

(xv) statutory maternity pay;

(xvi) statutory paternity pay payable under Part 12ZA of the Act[85];

(xvii) statutory adoption pay payable under Part 12ZB of the Act[86];

(xviii) any benefit similar to those mentioned in the preceding provisions of this paragraph payable under legislation having effect in Northern Ireland;



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

(l) any payment made under article 37 of the Naval, Military and Air Forces etc. (Disablement and Death) Service Pensions Order 1983[87];

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

(n) payments under a scheme made under the Pneumoconiosis etc. (Worker's Compensation) Act 1979[88];

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



(i) under a court order;

(ii) under an agreement for maintenance; or

(iii) voluntarily;



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

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

(r) any payment made to the claimant in respect of any book registered under the Public Lending Right Scheme 1982[89];

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

(t) any sum payable by way of pension out of money provided under the Civil List Act 1837[90], the Civil List Act 1937[91], the Civil List Act 1952[92], the Civil List Act 1972[93] or the Civil List Act 1975[94];

(u) any income in lieu of that specified in sub-paragraphs (a) to (r);

(v) any payment of rent made to a claimant who—



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

(ii) occupies part of the property; and

(iii) has an agreement with another person allowing that person to occupy that property on payment of rent; and



(w) any payment made at regular intervals under an equity release scheme.

    (2) For the purposes of these Regulations, a claimant's capital, other than capital disregarded under Schedule 4, shall be treated as if it were a weekly income—

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

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

    (3) Where the payment of any social security benefit prescribed under paragraph (1) is subject to any deduction (other than an adjustment specified in paragraph (5)) the amount to be taken into account under paragraph (1) shall be the amount before the deduction is made.

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

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

(a) the Social Security (Overlapping Benefits) Regulations 1979[95];

(b) the Social Security (Hospital In-Patients) Regulations 1975[96];

(c) section 30DD or section 30E of the Act[97] (reductions in incapacity benefit in respect of pensions and councillor's allowances).

    (6) This paragraph applies to accommodation provided—

(a) in a care home;

(b) in an Abbeyfield home;

(c) under section 3 of, and Part 2 of the Schedule to, the Polish Resettlement Act 1947[98] (provision of accommodation) where the claimant requires personal care;

(d) in an independent hospital.

    (7) For the purposes of paragraph (6), a person shall be treated as residing permanently in the accommodation—

(a) except where sub-paragraph (b) applies, notwithstanding that he is absent from it for a period not exceeding 52 weeks;

(b) if it is accommodation to which paragraph (6)(c) applies—


(i) notwithstanding that he is absent from it for a period not exceeding 13 weeks; and

(ii) if he, with the agreement of the manager of the home, intends to return to it in due course.

    (8) In paragraph (1)(w), "equity release scheme" means a loan—

(a) made between a person ("the lender") and the claimant;

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

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

Calculation of income on a weekly basis
     20. —(1) Subject to regulation 24 (disregard of changes in tax, contributions etc.), for the purposes of section 131(5) of the Act (conditions for entitlement to council tax benefit) the claimant's income shall be calculated on a weekly basis—

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

(b) by adding to that amount the weekly income calculated under regulation 19(2);

(c) by then deducting any relevant child care charges to which regulation 21 (treatment of child care charges) applies from any earnings which form part of the average weekly income or, in a case where the conditions in paragraph (2) are met, from those earnings plus whichever credit specified in sub-paragraph (b) of that paragraph is appropriate, up to a maximum deduction in respect of the claimant's family of whichever of the sums specified in paragraph (3) applies in his case.

    (2) The conditions of this paragraph are that—

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

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

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

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

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

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

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

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

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


(i) is incapacitated;

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

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

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

(a) is paid statutory sick pay;

(b) is paid short-term incapacity benefit at the lower rate under sections 30A to 30E of the Act[99];

(c) is paid income support on the grounds of incapacity for work under regulation 4ZA of, and paragraph 7 or 14 of Schedule 1B to, the Income Support (General) Regulations 1987[100]; or

(d) is credited with earnings on the grounds of incapacity for work under regulation 8B of the Social Security (Credits) Regulations 1975[101].

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

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

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

as the case may be.

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

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

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

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

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

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

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

(b) by a claimant to a partner or by a partner to a claimant in respect of any child for whom either or any of them is responsible in accordance with regulation 10 (circumstances in which a person is treated as responsible or not responsible for another); or

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

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

(a) out of school hours, by a school on school premises or by a local authority—


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

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



(b) by a child care provider approved in accordance with the Tax Credit (New Category of Child Care Provider) Regulations 1999[102];

(c) by persons registered under Part 10A of the Children Act 1989[103];

(d) in schools or establishments which are exempted from registration under Part 10A of the Children Act 1989 by virtue of paragraph 1 or 2 of Schedule 9A to that Act[104];

(e) by—



(i) persons registered under section 7(1) of the Regulation of Care (Scotland) Act 2001[105]; or

(ii) local authorities registered under section 33(1) of that Act,



where the care provided is childminding or day care of children[106] within the meaning of that Act; or

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

    (9) In paragraphs (6) and (8)(a), "the first Monday in September" means the Monday which first occurs in the month of September in any year.

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

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

(a) he is aged not less than 80;

(b) he is aged less than 80; and—


(i) the additional conditions specified in paragraph 13 of Schedule 1 of the Council Tax Benefit Regulations are treated as applying in his case; and

(ii) he satisfies those conditions or would satisfy them but for his being treated as capable of work by virtue of a determination made in accordance with regulations made under section 171E of the Act[107];



(c) the claimant (within the meaning of regulation 2(1)) is, or is treated as, incapable of work and has been so incapable, or has been so treated as incapable, of work in accordance with the provisions of, and regulations made under, Part 12A of the Act (incapacity for work) for a continuous period of not less than 196 days; and for this purpose any two or more separate periods separated by a break of not more than 56 days shall be treated as one continuous period;

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



(i) long-term incapacity benefit or short-term incapacity benefit at the higher rate specified in Schedule 4 to Act;

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

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

(iv) disability living allowance under section 71 of the Act;

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

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



(e) a pension or allowance to which head (ii), (iv), (v) or (vi) of sub-paragraph (d) above refers was payable on account of his incapacity but has ceased to be payable in consequence of his becoming a patient within the meaning of regulation 12(5) (applicable amounts);

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

(g) he has an invalid carriage or other vehicle provided to him by the Secretary of State under section 5(2)(a) of and Schedule 2 to the National Health Service Act 1977[108] or by Scottish Ministers under section 46 of the National Health Service (Scotland) Act 1978[109] or provided by the Department of Health and Social Services for Northern Ireland under Article 30(1) of the Health and Personal Social Services (Northern Ireland) Order 1972[110].

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

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

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

(b) who is registered as blind in a register compiled under section 29 of the National Assistance Act 1948[111] (welfare services) or, in Scotland, has been certified as blind and in consequence he is registered as blind in a register maintained by or on behalf of a council constituted under section 2 of the Local Government (Scotland) Act 1999[112]; or

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

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

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

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

(c) she is entitled to statutory maternity pay under section 164 of the Act, statutory paternity pay by virtue of section 171ZA or 171ZB of the Act[113], statutory adoption pay by virtue of section 171ZL of the Act[114] or maternity allowance under section 35 of the Act.

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

(a) the date that leave ends;

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

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

whichever shall occur first.

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

Calculation of average weekly income from tax credits
     22. —(1) This regulation applies where a claimant receives a tax credit.

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

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

(a) a daily instalment, the period is 1 day, being the day in respect of which the instalment is paid;

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

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

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

    (4) For the purposes of this regulation "tax credit" means working tax credit.

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

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

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


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

(ii) in a case where that period is 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 of days in the period in respect of which it is made.

    (2) Where—

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

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

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

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

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


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

(bb) the last four payments if the last two payments are less than one month apart; or

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

    (3) For the purposes of paragraph (2)(b) the last payments are the last payments before the date the claim was made or treated as made or, if there is a subsequent supersession under paragraph 4 of Schedule 7 to the Child Support, Pensions and Social Security Act 2000[115], the last payments before the date of the supersession.

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

    (5) This paragraph applies to—

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

(b) any payment made to the claimant in respect of any book registered under the Public Lending Right Scheme 1982[116]; and

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

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

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

    (8) The sums specified in Schedule 2 shall be disregarded in calculating—

(a) the claimant's earnings; and

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

    (9) Income specified in Schedule 3 is to be disregarded in the calculation of a claimant's income.

    (10) An authority may modify this Part so as to provide for disregarding, in determining a woman's income, the whole or any part of a pension payable to her as a widow under the Naval, Military and Air Forces etc. (Disablement and Death) Service Pensions Order 1983 insofar as that Order is made under the Naval and Marine Pay and Pensions Act 1865, or is made only under section 12(1) of the Social Security (Miscellaneous Provisions) Act 1977 and any power of Her Majesty otherwise than under an enactment to make provision about pensions for or in respect of persons who have been disabled or have died in consequence of service as members of the armed forces of the Crown, to the extent that such a pension does not fall to be disregarded by virtue of paragraph 1 of Schedule 3.

    (11) Schedule 4 shall have effect so that—

(a) the capital specified in Part 1 shall be disregarded for the purpose of determining a claimant's income; and

(b) the capital specified in Part 2 shall be disregarded for the purpose of determining a claimant's income under regulation 19(2).

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

    (13) An authority may modify this Part so as to provide for disregarding, in determining a person's income, the whole or any part of any war widower's pension payable to that person or to his partner or to a person to whom he is polygamously married.

Disregard of changes in tax, contributions etc
     24. In calculating the claimant's income the appropriate authority may disregard any legislative change—

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

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

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

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

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

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

(a) any bonus or commission;

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

(c) any payment in lieu of notice;

(d) any holiday pay;

(e) any payment by way of a retainer;

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


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

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



(g) the amount of any payment by way of a non-cash voucher which has been taken into account in the computation of a person's earnings in accordance with Part 5 of Schedule 3 to the Social Security (Contributions) Regulations 2001[117];

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

(i) statutory paternity pay payable under Part 12ZA of the Act[118];

(j) statutory adoption pay payable under Part 12ZB of the Act[119];

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



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

(ii) by reason of pregnancy or confinement.

    (2) Earnings shall not include—

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

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

(c) any occupational pension;

(d) any lump sum payment made under the Iron and Steel Re-adaptation Benefits Scheme[120];

(e) any payment of compensation made pursuant to an award by an employment tribunal[121] established under the Employment Tribunals Act 1996[122] in respect of unfair dismissal or unlawful discrimination.

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

Calculation of net earnings of employed earners
     26. —(1) For the purposes of regulation 20 (calculation of income on a weekly basis), the earnings of a claimant derived or likely to be derived from employment as an employed earner to be taken into account shall, subject to regulation 23(4) and Schedule 2, be his net earnings.

    (2) For the purposes of paragraph (1) net earnings shall, except where paragraph (5) applies, be calculated by taking into account the gross earnings of the claimant from that employment over the assessment period, less—

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


(i) income tax;

(ii) primary Class 1 contributions under the Act;



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

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

(d) where those earnings include a payment which is payable under any enactment having effect in Northern Ireland and which corresponds to statutory sick pay, statutory maternity pay, statutory paternity pay or statutory adoption pay, any amount deducted from those earnings by way of any contributions which are payable under any enactment having effect in Northern Ireland and which correspond to primary Class 1 contributions under the Act.

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

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

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

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

    (5) Where the earnings of a claimant are determined under sub-paragraph (b) of paragraph (2) of regulation 23 (calculation of weekly income), his net earnings shall be calculated by taking into account those earnings over the assessment period, less—

(a) an amount in respect of income tax equivalent to an amount calculated by applying to those earnings the lower rate or, as the case may be, the lower rate and the basic rate of tax applicable to the assessment period less only the personal relief to which the claimant is entitled under sections 257(1) of the Income and Corporation Taxes Act 1988[123] (personal allowances) as is appropriate to his circumstances but, if the assessment period is less th