Office of Public Sector Information
162.—(1) In a case to which this regulation applies a claimant’s weekly applicable amount and that claimant’s income and capital are to be calculated in accordance with the following provisions of this Part.
(2) Subject to paragraph (3), this regulation applies to a claimant who is treated as possessing income under regulation 107(1) (notional income).
(3) This regulation is only to apply to a claimant to whom paragraph (2) applies, where the income that claimant is treated as possessing by virtue of regulation 107(1) is not readily available to that claimant; and—
(a) the amount of an income-related allowance which would be payable but for this Part is less than the amount of an income-related allowance payable by virtue of the provisions of this Part; and
(b) the Secretary of State is satisfied that, unless the provisions of this Part are applied to the claimant, the claimant or the claimant’s family will suffer hardship.
163. For the purposes of calculating any entitlement to an income-related allowance under this Part—
(a) except in a case to which sub-paragraph (b) or (c) applies, a claimant’s weekly applicable amount is to be the aggregate of—
(i) 90% of the amount applicable in respect of himself or herself or, if the claimant 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 4 or, as the case may be, the amount applicable in respect of them under regulation 68 (polygamous marriages);
(ii) the amount, if applicable, specified in Part 2 of Schedule 4 (premiums);
(iii) the amount, if applicable, specified in Part 4 of Schedule 4 (components); and
(iv) any amounts applicable under regulation 67(1)(c) or, as the case may be, 68(1)(d) (housing costs);
(b) in the case of a claimant to whom any paragraph of Schedule 5 (special cases) applies, the applicable amount is to be the aggregate of—
(i) 90% of the amount applicable in column 2 of that Schedule in respect of the claimant and partner (if any);
(ii) the amount, if applicable, specified in Part 2 of Schedule 4;
(iii) the amount, if applicable, specified in Part 4 of Schedule 4; and
(iv) any amounts applicable under regulation 67(1)(c) or, as the case may be, 68(1)(d); or
(c) in the case of a claimant to whom regulation 162(2) applies, where that claimant is appealing to an appeal tribunal constituted under Chapter 1 of Part 1 of the Social Security Act 1998, against a decision which embodies a determination that the claimant does not have limited capability for work, the applicable amount is to be the aggregate of—
(i) 90% of the amount applicable in respect of himself or herself or, if the claimant 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 4 or, as the case may be, the amount applicable in respect of them under regulation 68 (polygamous marriages);
(ii) the amount, if applicable, specified in Part 2 of Schedule 4 (premiums); and
(iii) any amounts applicable under regulation 67(1)(c) or, as the case may be, 68(1)(d).
164.—(1) The claimant’s income is to be calculated in accordance with Part 10 subject to the following modifications—
(a) any income other than—
(i) a payment of income or income in kind made under the Macfarlane Trust, the Macfarlane (Special Payments) Trust, the Macfarlane (Special Payments) (No. 2) Trust, the Fund, the Eileen Trust or the Independent Living Funds; or
(ii) income to which paragraph 9 (but only to the extent that a concessionary payment would be due under that paragraph for any non-payment of an income-related allowance under regulation 162 (urgent cases) or of jobseeker’s allowance under regulation 147 of the Jobseeker’s Allowance Regulations (urgent cases)), 35, 41(2), (3) or (4), 42, 64 or 65 of Schedule 8 (disregard of income other than earnings) applies,
possessed or treated as possessed by the claimant, is to 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 118 (calculation of tariff income from capital) applies is to be disregarded;
(c) income treated as capital by virtue of regulation 112(1), (2), (3) and (7) (income treated as capital) is to be taken into account as income;
(d) in a case to which regulation 162(2) (urgent cases) applies, any income to which regulation 107(1) applies is to be disregarded.
(2) The claimant’s capital calculated in accordance with Part 10, but including any capital referred to in—
(a) paragraph 3;
(b) to the extent that such assets as are referred to in paragraph 10 consist of liquid assets, paragraph 10;
(c) except to the extent that the arrears referred to in paragraph 11 consist of arrears of housing benefit payable under Part 2 or Part 7 of the Contributions and Benefits Act or any arrears of benefit due under regulation 162, or regulation 147 of the Jobseeker’s Allowance Regulations (urgent cases), paragraph 11; and
(d) paragraphs 13(b), 24 and 32,
of Schedule 9 (capital to be disregarded), are to be taken into account in full and the amount of an income-related allowance which would, but for this paragraph be payable under this regulation, is to be payable only to the extent that it exceeds the amount of that capital.
165.—(1) This regulation applies where the claimant is entitled to an employment and support allowance for a part-week and is subject to the following provisions of this Part.
(2) The amount payable by way of an income-related allowance in respect of that part-week is to be calculated by applying the formula—
(a) where the claimant has no income—
or
(b) where the claimant has an income—
where—
A is the claimant’s weekly applicable amount in the relevant week;
B is the amount of any employment and support allowance, jobseeker’s allowance, income support, maternity allowance, incapacity benefit or severe disablement allowance payable to the claimant or the claimant’s partner in respect of any day in the part-week;
I is the claimant’s weekly income in the relevant week; and
N is the number of days in the part week.
(3) The amount payable by way of a contributory allowance in respect of a part-week is to be calculated by applying the formula—
where—
X is the amount calculated in accordance with section 2(1) of the Act;
Y is the amount of any widow’s benefit, widowed parent’s allowance, bereavement allowance, training allowance, carer’s allowance and any increase in disablement pension payable in accordance with Part 1 of Schedule 7 to the Contributions and Benefits Act (Unemployability Supplement) payable in respect of any day in the part-week;
N is the number of days in the part-week.
(4) In this Part—
“part-week” means an entitlement to an employment and support allowance in respect of any period of less than a week;
“relevant week” means the period of 7 days determined in accordance with regulation 166.
166.—(1) Where a part-week—
(a) is the whole period for which an employment and support allowance is payable, or occurs at the beginning of an award, the relevant week is the period of 7 days ending on the last day of that part-week; or
(b) occurs at the end of an award, the relevant week is the period of 7 days beginning on the first day of the part-week.
(2) Where a claimant has an award of an employment and support allowance and that claimant’s benefit week changes, for the purpose of calculating the amounts of an employment and support allowance payable for the part-week beginning on the day after the last complete benefit week before the change and ending immediately before the change, the relevant week is the period of 7 days beginning on the day after the last complete benefit week.
167. For the purposes of regulation 165 (entitlement for less than a week – amount of an employment and support allowance payable), a claimant’s income and, in determining the amount payable by way of an income-related allowance, the income of any person which the claimant is treated as possessing under regulations made under section 17(3) of the Act, regulation 68 (polygamous marriages) or regulation 83 (calculation of income and capital of members of claimant’s family and of a polygamous marriage), is to be calculated in accordance with Parts 10 (income and capital) and 13 (urgent cases) subject to the following changes—
(a) any income which is due to be paid in the relevant week is to be treated as paid on the first day of that week;
(b) in determining the amount payable by way of an income-related allowance, any jobseeker’s allowance, employment and support allowance, income support, maternity allowance, incapacity benefit or severe disablement allowance payable in the relevant week but not in respect of any day in the part-week is to be disregarded;
(c) the amount referred to as B in regulation 165(2) is to be disregarded;
(d) in determining the amount payable by way of a contributory allowance, any widow’s benefit, training allowance, widowed parent’s allowance, bereavement allowance, carer’s allowance and any increase in disablement pension payable in accordance with Part 1 of Schedule 7 to the Contributions and Benefits Act (unemployability supplement) which is payable in the relevant week but not in respect of any day in the part-week is to be disregarded;
(e) where the part-week occurs at the end of the claim—
(i) any income; or
(ii) any change in the amount of income of the same kind,
which is first payable within the relevant week but not on any day in the part-week is to be disregarded;
(f) where only part of the weekly balance of income is taken into account in the relevant week, the balance is to be disregarded.
168. The reduction to be made in accordance with regulations 157 and 158 is an amount equal to one seventh of the reduction which would be made under those regulations for a week, multiplied by the number of days in a part-week.
169.—(1) Where a claimant is entitled to a contributory allowance as a result of being treated as having limited capability for work in accordance with regulation 26 the amount payable is to be equal to one seventh of the amount of the contributory allowance which would be payable in respect of a week in accordance with section 2(1) of the Act multiplied by N.
(2) In paragraph (1), N is the number of days in that week on which the claimant was receiving treatment referred to in regulation 26 or recovering from that treatment, but does not include any day during which the claimant does work.
Signed by the authority of the Secretary of State for Work and Pensions.
Stephen. C. Timms
Minister of State,
Department for Work and Pensions
25th March 2008
The Employment and Support Allowance Regulations 2008