PART IE+W+SGENERAL

Citation and commencementE+W+S

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

InterpretationE+W+S

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

“the Act” means the Social Security Act 1986;

“attendance allowance” means—

[F7“the benefit Acts" means the Contributions and Benefits Act and the Jobseekers Act 1995;]

“benefit week” has the meaning prescribed in paragraph 4 of Schedule 7 to the Social Security (Claims and Payments) Regulations 1987F8; [F9and for the purposes of calculating any payment of income and of regulation 74(2)(a) “benefit week” shall also mean the period of 7 days ending on the day before the first day of the first benefit week following the date of claim or the last day on which income support is paid if it is in payment for less than a week;]

[F10“board and lodging accommodation” means—

except accommodation provided by a close relative of his or of any other member of his family, or other than on a commercial basis;]

[F11“the Children Order" means the Children (Northern Ireland) Order 1995;]

“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;

[F12“community charge benefit” means community charge benefits under Part VII of the Contributions and Benefits Act as originally enacted;]

“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 1975F13 are charged;

[F14“the Contributions and Benefits Act” means the Social Security Contributions and Benefits Act 1992;]

“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;

[F15“date of claim” means the date on which the claimant makes, or is treated as making, a claim for income support for the purposes of regulation 6 of the Social Security (Claims and Payments) Regulations 1987;]

[F16“disability living allowance” means a disability living allowance under section 37ZA of the Social Security Act;]

[F17“disabled person’s tax credit” means a disabled person’s tax credit under section 129 of the Contributions and Benefits Act;]

“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;

[F18“earnings top-up" means the allowance paid by the Secretary of State under the Earnings Top-up Scheme;]

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

[F19“employment” except for the purposes of section 20(3)(d) of the Act, includes any trade, business, profession, office or vocation;]

“housing association” has the meaning assigned to it by section 1(1) of the Housing Associations Act 1985F20;

[F21“housing benefit expenditure" means expenditure in respect of which housing benefit is payable as specified in regulation 10(1) of the Housing Benefit (General) Regulations 1987 but does not include any such expenditure in respect of which an amount is applicable under regulation 17(1)(e) or 18(1)(f) (housing costs);]

[F22“immigration authorities" in regulation 21(3) (special cases) means an adjudicator, an immigration officer or an immigration appeal tribunal appointed for the purposes of the Immigration Act 1971 and in addition means the Secretary of State;]

“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;

[F23“last day of the course” has the meaning prescribed in regulation 61 for the purposes of the definition of “period of study”;]

“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;

[F24“lower rate” where it relates to rates of tax has the same meaning as in the Income and Corporation Taxes Act 1988 by virtue of section 832(1) of that Act;]

[F15“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 III of the Employment Protection (Consolidation) Act 1978;]

“mobility allowance” means an allowance under section 37A of the Social Security ActF25;

“mobility supplement” means any supplement under article 26A of the Naval, Military and Air Forces etc (Disablement and Death) Service Pensions Order 1983 F26 including such a supplement by virtue of any other scheme or order or under Article 25A of the Personal Injuries (Civilians) Scheme 1983F27;

“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—

“payment” includes a part of a payment;

[F28“pay period” means the period in respect of which a claimant is, or expects to be, normally paid by his employer, being a week, a fortnight, four weeks, a month or other shorter or longer period as the case may be;]

[F29“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;]

[F30“period of study” means the period beginning with the start of the course of study and ending with the last day of the course or such earlier date as the student abandons it or is dismissed from it; but any period of attendance by the student at his educational establishment in connection with the course which is outside the period of the course shall be treated as part of the period of study;]

[F15“personal pension scheme” has the same meaning as in [F31section 1 of the Pension Schemes Act 1993] and, in the case of a self-employed earner, includes a scheme approved by the Inland Revenue under Chapter IV of Part XIV 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 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;

[F32“polygamous marriage” means any marriage during the subsistence of which a party to it is married to more than one person and the ceremony of marriage took place under the law of a country which permits polygamy;]

[F33“preserved right” means a preserved right for the purpose of regulation 19;]

[F34“qualifying person” means a person in respect of whom payment has been made from the Fund [F35or the Eileen Trust];]

F36...

“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;

[F37“residential accommodation” except in [F38regulation 19 and Schedule 3B] has the meaning prescribed in regulation 21(3);]

[F33“residential allowance” means the weekly amount determined in accordance with paragraph 2A of Schedule 2;]

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

[F39“retirement annuity contract" means a contract or trust scheme approved under Chapter III of Part XIV of the Income and Corporation Taxes Act 1988;]

“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 1975F40;

[F41“sports award" means an award made by one of the Sports Councils named in section 23(2) of the National Lottery etc. Act 1993 out of sums allocated to it for distribution under that section;]

“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 1976F42;

“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 F43;

[F18“the Earnings Top-up Scheme" means the Earnings Top-up Scheme 1996]

[F44“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;]

[F34“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;]

[F45“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 Shepherd of the other part;]

[F45“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;]

[F46“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;]

[F45“the Independent Living Funds” means the Independent Living Fund, the Independent Living (Extension) Fund and the Independent Living (1933) Fund;]

[F47“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;]

[F48“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;]

[F49“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;]

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

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[F53, other than under arrangements made under section 2 of the Employment and Training Act 1973,] or is training as a teacher;

[F54“voluntary organisation” means a body, other than a public or local authority, the activities of which are carried on otherwise than for profit;]

[F55“water charges” means—

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

[F56“welfare to work beneficiary" means a person–

[F57“working families' tax credit” means a working families' tax credit under section 128 of the Contributions and Benefits Act;]

[F58“year of assessment” has the meaning prescribed in section 832(1) of the Income and Corporation Taxes Act 1988;]

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

[F59“youth training scheme” [F60or youth training] means—

for purposes which include the training of persons who, at the beginning of their training, are under the age of 18.]

(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.

[F61(4) For the purposes of these Regulations references to “benefit under the benefit Acts” shall be construed as including a reference to earnings top-up.]

[F62Disapplication of section 1(1A) of the Administration ActE+W+S

2A.  Section 1(1A) of the Administration Act (requirement to state national insurance number) shall not apply—

(a)to a child or young person in respect of whom income support is claimed;

(b)to a partner in respect of whom a claim for income support is made or treated as made before [F635th October 1998].]

Definition of non-dependantE+W+S

3.—(1) In these Regulations, “non-dependant” means any person, except someone [F64to whom paragraph (2), (2A) or (2B) applies], who normally resides with a claimant [F65or with whom a claimant normally resides.]

[F66(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 (circumstances in which a person is to be treated as being or not being a member of the household);

(c)a person who lives with the claimant in order to care for him or for the claimant’s partner and who is engaged for that purpose by a charitable or [F67voluntary organisation] which makes a charge to the claimant or the claimant’s partner for the care provided by that person;

(d)the partner of a person to whom sub-paragraph (c) applies.

(2A) This paragraph applies to a person, other than a close relative of the claimant or the claimant’s partner,—

(a)who is liable to make payments on a commercial basis to the claimant or the claimant’s partner in respect of his occupation of the claimant’s dwelling;

(b)to whom the claimant or the claimant’s partner is liable to make payments on a commercial basis in respect of his occupation of that person’s dwelling;

(c)who is a member of the household of a person to whom sub-paragraph (a) or (b) applies.

(2B) Subject to paragraph (2C), this paragraph applies to—

(a)a person who jointly occupies the claimant’s dwelling and who is either—

(i)a co-owner of that dwelling with the claimant or the claimant’s partner (whether or not there are other co-owners); or

(ii)jointly liable with the claimant or the claimant’s partner to make payments to a landlord in respect of his occupation of that dwelling;

(b)a partner of a person to whom sub-paragraph (a) applies.

(2C) Where a person is a close relative of the claimant or the claimant’s partner, paragraph (2B) shall apply to him only if the claimant’s, or the claimant’s partner’s, co-ownership, or joint liability to make payments to a landlord in respect of his occupation, of the dwelling arose either before 11th April 1988, or, if later, on or before the date upon which the claimant or the claimant’s partner first occupied the dwelling in question.]

F68(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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 [F69but not if each person is separately liable to make payments in respect of his occupation of the dwelling to the landlord].

(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.

[F70Permitted periodE+W+S

3A.—(1) For the purposes of regulation 17(6), F71... paragraph 7(6) of Schedule 3A, paragraph 6(3) of Schedule 3B and paragraphs 4 and 6 of Schedule 8 (applicable amounts, mortgage interest, protected sums and earnings to be disregarded), where a claimant has ceased to be entitled to income support–

(a)because he or his partner becomes engaged in remunerative work the permitted period, F72... shall be twelve weeks; or

(b)for any other reason, the permitted period shall be eight weeks.

F73(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F74(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

PART IIE+W+SCONDITIONS OF ENTITLEMENT

[F75Prescribed categories of personE+W+S

4ZA.—(1) Subject to the following provisions of this regulation, a person to whom any paragraph of Schedule 1B applies falls within a prescribed category of person for the purposes of section 124(1)(e) of the Contributions and Benefits Act (entitlement to income support).

(2) Paragraph (1) does not apply to a student during the period of study.

(3) A student during the period of study falls within a prescribed category of person for the purposes of section 124(1)(e) of the Contributions and Benefits Act only if—

(a)regulation 70(3)(a) applies to him; or

(b)paragraph 1, 2, 10, 11, 12, or 18 of Schedule 1B applies to him; or

(c)any other paragraph of Schedule 1B applies to him and he has a partner who is also a student, and either he or his partner is treated as responsible for a child or young person, but this provision shall apply only for the period of the summer vacation appropriate to his course.]

[F76(4) A person who falls within a prescribed category in Schedule 1B for the purposes of this regulation for any day in a benefit week, shall fall within that category for the whole of that week.]

Temporary absence from Great BritainE+W+S

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 [F77shall continue only—

(a)in the circumstances specified in paragraph (2), during the first 4 weeks of that period of temporary absence; and

(b)in the circumstances specified in paragraph (3), during the first 8 weeks of that period.]

(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—

[F78(i)the claimant falls within one or more of the prescribed categories of person listed in Schedule 1B other than paragraphs 7, 15, 20, 21, 24, 25, 26 or 27 of that Schedule; or]

[F78(ii)the claimant falls within paragraph 7 of Schedule 1B (persons incapable of 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 satisfies the conditions of that paragraph; 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, [F799A,] 10, 11 or 13 of Schedule 2 (applicable amounts) is applicable in respect of his partner [F80 or

[F81(v)on the day on which the absence began he had satisfied the provisions of [F82paragraph 7 of Schedule 1B] (persons incapable of work) for a continuous period of not less than—

(aa)196 days in the case of a claimant who is terminally ill within the meaning of section 30B(4) of the Contributions and Benefits Act, or who is entitled to the highest rate of the care component of disability living allowance; or

(bb)364 days in any other case,

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.]]

[F83(3) The circumstances in which a claimant’s entitlement to income support is to continue during the first 8 weeks of a temporary absence from Great Britain are that—

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

(b)the claimant continues to satisfy the other conditions of entitlement to income support; and

(c)the claimant is, or the claimant and any other member of his family are, accompanying a member of the claimant’s family who is a child or young person solely in connection with arrangements made for the treatment of that child or young person for a disease or bodily or mental disablement; and

(d)those arrangements relate to treatment—

(i)outside Great Britain;

(ii)during the period whilst the claimant is, or the claimant and any member of his family are, temporarily absent from Great Britain; and

(iii)by, or under the supervision of, a person appropriately qualified to carry out that treatment.]

[F83(4) In paragraphs (2) and (3) “appropriately qualified” means qualified to provide medical treatment, physiotherapy or a form of treatment which is similar to, or related to, either of those forms of treatment.]

Persons treated as engaged in remunerative workE+W+S

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 [F84not less than 16 hours] a week being work for which payment is made or which is done in expectation of payment.

[F85(1A) In the case of any partner of the claimant paragraph (1) shall have effect as though for the words “16 hours" there were substituted the words “24 hours".]

(2) [F86Subject to paragraph (3B),] 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 [F87on which a superseding decision is made under section 10 (decisions superseding earlier decisions) of the Social Security Act 1998], 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.

[F88(3A) A person shall not be treated as engaged in remunerative work on any day on which the person is on maternity leave or is absent from work because he is ill.]

[F89(3B) Where for the purpose of paragraph (2)(b)(i), 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) A person who makes a claim and to whom or whose partner section 23 of the Act (trade disputes) applies [F90or applied] 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 [F91regulation 35(1)(b) to (d) and (i)] (earnings of employed earners) applies are [F92paid] 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.

[F93(6) For the purposes of this regulation, in determining the number of hours in which a person is engaged or treated as engaged in remunerative work, no account shall be taken of any hours in which the person is engaged in an employment or a scheme to which paragraph (a) to [F94paragraph (k)] of regulation 6 (persons not treated as engaged in remunerative work) applies.]

[F95(7) For the purposes of paragraphs (1) and (2), in determining the number of hours for which a person is engaged in work, that number shall include any time allowed to that person by his employer for a meal or for refreshment, but only where that person is, or expects to be, paid earnings in respect of that time.]

[F96(8) Subject to paragraph (9), a person who has not been treated as engaged in remunerative work in accordance with regulation 6(2) as a consequence of his commencing work shall be treated as engaged in remunerative work for the period specified in paragraph (10) where he ceased to be engaged in that work within the period of five weeks beginning on the date on which he commenced it.

(9) Paragraph (8) shall not apply in the case of a person who is temporarily absent from the work referred to in regulation 6(2)(a).

(10) A person to whom paragraph (8) applies shall be treated as engaged in remunerative work for the period commencing on the day after the day on which he was last engaged in the work referred to in regulation 6(2)(a) and ending on the day on which the length of that period corresponds with the length of the period in respect of which he had not been treated as engaged in remunerative work in accordance with regulation 6(2).]

Persons not treated as engaged in remunerative workE+W+S

6.—[F97(1)] A person shall not be treated as engaged in [F98remunerative work in so far as—]

[F99(a)he is mentally or physically disabled, and by reason of that disability—

(i)his earnings are reduced to 75 per cent. or less of what a person without that disability and working the same number of hours would reasonably be expected to earn in that employment or in comparable employment in the area; or

(ii)his number of hours of work are 75 per cent. or less of what a person without that disability would reasonably be expected to undertake in that employment or in comparable employment in the area.]

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

(c)he is engaged by a charity or [F100voluntary organisationF101...,] 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; F102...

(e)subject to regulation 5(4) [F103and (5)] (persons treated as engaged in remunerative work) he is a person to whom section 23 of the Act (trade disputes) applies [F104or in respect of whom section 20(3) of the Act (conditions of entitlement to income support) has effect as modified by section 23A(b) of the Act (effect of return to work)];F102...

[F105(f)he is a person to whom paragraph 4 of Schedule 1B applies;]

[F106(g)he is in employment, and—

(i)lives in, or is temporarily absent from, a residential care home, a nursing home or residential accommodation, and either

(ii)his, or his partner’s, applicable amount falls to be calculated in accordance with Part I of Schedule 4 (applicable amounts of persons in residential care and nursing homes) or, as the case may be, paragraph 9, 10 to 10D, 13, 16 or 18 of Schedule 7 (applicable amounts in special cases), or

(iii)he or his partner satisfies the conditions specified in paragraph 2A(2) of Part I of Schedule 2 (conditions for entitlement to a residential allowance);]

[F107(h)he is engaged in any one of the employments mentioned in heads (a) to (d) of sub-paragraph (1) of paragraph 7 of Schedule 8 (which relates to persons serving as firemen, in coastal rescue activities etc); F108...]

[F107(j)he is performing his duties as a councillor, and for this purpose “councillor” has the same meaning as in paragraph 2(6) of Schedule 8 to the Social Security Act [F1091989; or]]

[F110(k)he is engaged in caring for a person who is accommodated with him by virtue of arrangements made under any of the provisions referred to in paragraph 26 [F111or in accordance with paragraph 27] of Schedule 9 (sums to be disregarded in the calculation of income other than earnings) and is in receipt of any payment specified in [F112those paragraphs].]

[F113(m)he is engaged in an activity in respect of which—

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

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

[F114(2) A lone parent shall not be treated as engaged in remunerative work for the period specified in paragraph (3) in so far as—

(a)he is engaged in work which—

(i)is remunerative work; and

(ii)he is expected to be engaged in for a period of no less than five weeks; and

(b)he had been, for a continuous period of 26 weeks ending on the day before the day on which he commenced the work referred to in sub-paragraph (a)—

(i)entitled to and in receipt of income support or income-based jobseeker’s allowance; and

(ii)a lone parent.

(3)A person referred to in paragraph (2) shall not be treated as engaged in remunerative work for the period of 14 days commencing with the day on which he was first engaged in the work referred to in sub-paragraph (a) of that paragraph.]

Meaning of employmentE+W+S

F1157.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Persons not required to be available for employmentE+W+S

F1168.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Persons treated as available for employmentE+W+S

F1179.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Circumstances in which claimants are not to be treated as available for employmentE+W+S

F11810.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Actively seeking employmentE+W+S

F11910A.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Registration for employmentE+W+S

F12011.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F121Relevant EducationE+W+S

12.—(1) 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 not receiving advanced education; but

(b)he is receiving full-time education for the purposes of section 2 of the Child Benefit Act 1975 (meaning of child) or, as the case may be, he is treated as a child for the purposes of that section.

(2) For the purposes of this regulation “receiving advanced education” means participating in any course (whether full-time or part-time)—

(a)leading to a postgraduate degree or comparable qualification, a first degree or comparable qualification, a diploma of higher education, [F122a higher national diploma or higher national certificate of either the Business & [F123Technology] Education Council] or the Scottish Vocational Education Council or a teaching qualification; or

(b)any other course which is a course of a standard above ordinary national diploma, [F124a national diploma or national certificate of either the Business & [F123Technology] Education Council or the Scottish Vocational Education Council], a general certificate of education (advanced level), a Scottish certificate of education [F125(higher level)] or a Scottish certificate of sixth year studies.]

Circumstances in which persons in relevant education are to be entitled to income supportE+W+S

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 [F126a person aged 16 or over but under 19 (hereinafter referred to as an eligible 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

[F127(d)of necessity has to live away from his [F128parents and any] person acting in the place of his parents because–

(i)he is estranged from his [F128parents and that person]; or

(ii)he is in physical or moral danger; or

(iii)there is a serious risk to his physical or mental health;]

[F129(dd)has ceased to live in accommodation provided for him by a local authority under Part III of the Children Act 1989(local authority support for children and families) and is of necessity living away from his parents and any person acting in place of his parents;]

(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

F130(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F130(g). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F131(h)is a person to whom paragraph 18 of Schedule 1B (refugees) applies.]

(3) In this regulation—

[F132(a)any reference to a person acting in the place of an eligible person’s parents includes—

(i)for the purposes of paragraph (2)(c), (d) and (dd), a reference to a local authority or voluntary organisation where the eligible person is being looked after by them under a relevant enactment or where the eligible person is placed by the local authority or voluntary organisation with another person, that other person, whether or not a payment is made to him;

(ii)for the purposes of paragraph (2)(e), the person with whom the person is so placed;]

(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 F133 (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.

Persons under 18 yearsE+W+S

F13413A.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

PART IIIE+W+SMEMBERSHIP OF THE FAMILY

Persons of a prescribed descriptionE+W+S

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) [F135and (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 [F136a person who is receiving advanced education within the meaning of regulation 12(2) (relevant education) or 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 anotherE+W+S

15.—[F137(1) Subject to the following provisions of this regulation, a person is to be treated as responsible for a child or young person for whom he is receiving child benefit.

(1A) In a case where a child (“the first child”) is in receipt of child benefit in respect of another child (“the second child”), the person treated as responsible for the first child in accordance with the provisions of this regulation shall also be treated as responsible for the second child.

(2) In the case of a child or young person in respect of whom no person is receiving child benefit, the person who shall be treated as responsible for that child or young person shall be—

(a)except where sub-paragraph (b) applies, the person with whom the child or young person usually lives; or

(b)where only one claim for child benefit has been made in respect of the child or young person, the person who made that claim.]

(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 householdE+W+S

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 [F138notwithstanding that any of them] [F139is temporarily living away from the other members of his family].

[F140(2) Paragraph (1) shall not apply to a person who is living away from the other members of his family where—

(a)that person does not intend to resume living with the other members of his family; or

(b)his absence from the other members of his family is likely to exceed 52 weeks, unless there are exceptional circumstances (for example the person is in hospital or otherwise has no control over the length of his absence), and the absence is unlikely to be substantially more than 52 weeks.]

(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 F141 (special hospitals) or section 90(1) of the Mental Health (Scotland) Act 1984 F142 (provision of hospitals for patients requiring special security); or

[F143(b)one, both or all of them are—

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

(ii)on temporary release in accordance with the provisions of the Prison Act 1952 or the Prisons (Scotland) Act 1989;]

F144(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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—

[F145(a)placed with the claimant or his partner by a local authority under section 23(2)(a) of the Children Act 1989 or by a voluntary organisation under section 59(1)(a) of that Act; or

(b)placed 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 F146 or the Adoption Agencies (Scotland) Regulations 1984F147.

(5) Subject to paragraph (6), paragraph (1) shall not apply to a child or young person who is not living with the claimant [F148and who]—

(a)[F149in a case which does not fall within sub-paragraph (aa),] has been continuously absent from Great Britain for a period of more than four weeks commencing—

(i)[F150subject to paragraph (5A),] where he went abroad before the date of claim for income support, with that date;

(ii)in any other case, [F151on the day which immediately follows the day] on which he went abroad; or

[F152(aa)where regulation 4(3) or paragraph 11A or 12A of Schedule 7 (temporary absence abroad for the treatment of a child or young person) applies, has been continuously absent from Great Britain for a period of more than 8 weeks, that period of 8 weeks commencing—

(i)[F153subject to paragraph (5A),] where he went abroad before the date of the claim for income support, on the date of that claim;

(ii)in any other case, on the day which immediately follows the day on which he went abroad; or]

(b)has been an in-patient or in [F154accommodation provided under any of the provisions referred to in [F155any of sub-paragraphs (a) to (d) ([F156excluding heads (i) and (ii)] of sub-paragraph (d)) of the definition of residential accommodation”] in regulation 21(3)] for a continuous period of more than 12 weeks commencing—

(i)[F157subject to paragraph (5A),] 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

[F158(c)is being looked after by a local authority under a relevant enactment; or

(d)has been placed 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.

[F159(5A) Sub-paragraphs (a)(i), (aa)(i) and (b)(i) of paragraph (5) shall not apply in a case where immediately before the date of claim for income support the claimant was entitled to an income-based jobseeker’s allowance.]

(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—

[F160(a)“relevant enactment” means the Army Act 1955, the Social Work (Scotland) Act 1968, the Matrimonial Causes Act 1973, the Adoption (Scotland) Act 1978, the Family Law Act 1986 and the Children Act 1989]

(b)“voluntary organisation” has the meaning assigned to it in the [F161Children Act 1989] or, in Scotland, the Social Work (Scotland) Act 1968.

PART IVE+W+SAPPLICABLE AMOUNTS

Applicable amountsE+W+S

17.—(1) Subject to regulations [F16218 to 22A] 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, [F163except as provided in regulation 44(1) (modifications in respect of children and young persons)], would exceed £3,000;

[F164(bb)an amount in respect of himself, or where the claimant is a member of a family, an amount in respect of any member of the family aged 16 or over, determined in accordance with paragraph 2A of Schedule 2 (residential allowance);]

(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.

[F165(f)any amounts determined in accordance with [F166paragraphs (2) to (7)].]

[F167(g)the amount of the protected sum which may be applicable to him determined in accordance with Schedule 3A] [F168or, as the case may be, 3B].

[F169(2) Where —

(a)a claimant has throughout the period beginning on 11th April 1988 and ending immediately before the coming into force of paragraphs 25 to 28 of Schedule 10 (capital to be disregarded) failed to satisfy the capital condition in section 22(6) of the Act (no entitlement to benefit if capital exceeds prescribed amount); and

(b)as a consequence he is not entitled to any transitional addition, special transitional addition or personal expenses addition under Part II of the Transitional Regulations; and

(c)had those paragraphs been in force on 11th April 1988 he would have satisfied that condition and been entitled to any such addition,

the amount applicable under this paragraph shall, subject to paragraph (3), be equal to the amount of any transitional addition, special transitional addition and personal expenses addition to which he would be entitled under Part II of the Transitional Regulations had he been entitled to any such addition in the week commencing 11th April 1988.]

[F169(3) For the purposes of paragraph (2), in determining a claimant’s total benefit income in his second benefit week for the purpose of calculating the amount of any transitional addition to which he would have been entitled, no account shall be taken of any payment referred to in paragraph (1)(j) of regulation 9 of the Transitional Regulations (total benefit income) which is made in respect of that week to compensate for the loss of entitlement to income support.]

[F169(4) Subject to paragraph (6), where —

(a)the claimant or any member of his family was temporarily absent from his home in the claimant’s first or second benefit week (or both), because he was —

(i)a patient; or

(ii)outside Great Britain for the purpose of receiving treatment for any disease or bodily or mental disablement or for the purpose of accompanying a child or young person who is outside Great Britain for the purpose of receiving such treatment; or

(iii)in a residential care or nursing home or in accommodation provided under any of the provisions referred to in any of sub-paragraphs (a) to (d) of the definition of residential accommodation in regulation 21(3) (special cases); or

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

(v)staying with a person who was contributing to his maintenance; and

(b)as a result —

(i)in the claimant’s first benefit week his requirements for the purpose of calculating his entitlement to supplementary benefit were increased or reduced or he was not entitled to that benefit; or

(ii)in the claimant’s second benefit week his applicable amount was increased or reduced or he was not entitled to income support; and

(c)the period during which his requirements were, or his applicable amount was, increased or reduced, or he was not entitled to benefit, or any one or more of those circumstances existed, did not exceed 8 weeks,

the amount applicable under this paragraph shall be equal to the amount determined under paragraph (5).]

[F169(5) The amount for the purposes of paragraph (4) shall be an amount equal to the difference between —

(a)the amount that his total benefit income in his first benefit week would have been had he been entitled in respect of that week to supplementary benefit calculated on the basis that he or any member of his family had not been absent from the home; and, if less,

(b)the amount of his total benefit income in the first complete week after the period of temporary absence ends; but for the purpose of calculating his total benefit income in that week —

(i)no account shall be taken of any payment referred to in paragraph (1)(j) of regulation 9 of the Transitional Regulations which is made in respect of that week to compensate for the loss (in whole or in part) of entitlement to income support; and

(ii)if the period of temporary absence ends after the coming into force of paragraph (4), the amount of income support to be taken into account shall, notwithstanding regulation 9(6) of the Transitional Regulations, be calculated as if that paragraph were not in force.]

[F169(6) The amount under paragraph (4) shall cease to be applicable to a claimant if he ceases to be entitled to income support for a period exceeding [F170the permitted period determined in accordance with regulation 3A (permitted period)].]

[F171(6A) For the purposes of paragraph (6), where a claimant has ceased to be entitled to income support because he or his partner is participating in arrangements for training made under section 2 of the Employment and Training Act 1973 [F172or section 2 of the Enterprise and New Towns (Scotland) Act 1990] or attending a course at an employment rehabilitation centre established under that section [F173of the 1973 Act], he shall be treated as if he had been entitled to income support for the period during which he or his partner is participating in such arrangements or attending such a course.]

[F169(7) In this Regulation —

“first benefit week” and “second benefit week” have the meanings given to those expressions in regulations 2(1) of the Transitional Regulations and shall also include the week which would have been the claimant’s “first benefit week” or, as the case may be, “second benefit week” had he been entitled to supplementary benefit or, as the case may be, income support in that week;

“total benefit income” has, subject to paragraphs (3) and (5)(b), the same meaning as in regulation 9 of the Transitional Regulations;

“Transitional Regulations” means the Income Support (Transitional) Regulations 1987.]

Polygamous marriagesE+W+S

18.—[F174(1)] [F175Subject to paragraph (2) and regulations] [F17619 to 22A] 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 [F177sub-paragraphs (3)(d)] [F178and (1)(e)] 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, [F179except as provided in regulation 44(1) (modifications in respect of children and young persons)], would exceed £3,000;

[F180(cc)an amount, whether in respect of the claimant or any member of his household aged 16 or over, determined in accordance with paragraph 2A of Schedule 2 (residential allowance);]

(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.

[F181(g)any amount determined in accordance with regulation 17(1)(f) (applicable amounts);]

[F182(h)the amount of the protected sum which may be applicable to him determined in accordance with Schedule 3A] [F183or, as the case may be, 3B].

[F184(2) In the case of a partner who is aged less than 18, the amount which applies in respect of that partner shall be nil unless—

(a)that partner is treated as responsible for a child, or

[F185(b)that partner is a person who—

(i)had he not been a member of a polygamous marriage would have qualified for income support under regulation 4ZA; or

(ii)satisfies the requirements of section 3(1)(f)(iii) of the Jobseekers Act 1995 (prescribed circumstances for persons aged 16 but less than 18); or

(iii)is the subject of a direction under section 16 of the Jobseekers Act 1995 (persons under 18: severe hardship).]]

Applicable amounts for persons in residential care and nursing homesE+W+S

19.—[F186[F187(1)  Subject to [F188regulation 22A] (reduction of applicable amounts) where a claimant has a preserved right and either—

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

(b)is a member of a family and he and the members of his family live in such a home,]

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.]

[F189(1ZA) A person to whom paragraph (1) applies shall be treated as not being severely disabled.]

[F190(1ZB) In this regulation a person has a preserved right, subject to paragraphs (1ZE) and (1ZF), where—

(a)on 31st March 1993, he was living in a residential care home or a nursing home, and—

(i)was entitled to income support for the benefit week in which that day fell and his applicable amount was calculated in accordance with Part I of Schedule 4; or

(ii)was not in that week entitled to income support because he was able to meet the cost of the accommodation from other sources available to him, but subsequently becomes entitled to income support; or

[F191(iii)was not in that week entitled to income support, but was residing with his partner as a member of a couple on the relevant date where the partner was a person to whom head (i) or (ii) applies; or]

(b)he would have been living in a residential care home or nursing home on 31st March 1993 but for an absence which, including that day, does not exceed—

(i)except in a case to which head (ii)

applies—

(aa)where the person was before his absence a temporary resident in the home, 4 weeks, or

(bb)where the person was before his absence a permanent resident in the home, 13 weeks; or

(ii)where throughout the period of absence the person was a patient, 52 weeks,

and the provisions of sub-paragraph (a) would have applied to him but for that absence.

(1ZC) Subject to paragraphs (1ZD), (1ZE) and (1ZF), a person also has a preserved right where—

(a)on 31st March 1993 he was living in a residential care home or nursing home within the meaning of paragraph (3) as then in force, and was entitled to income support but his applicable amount was not calculated in accordance with Part I of Schedule 4 because he was a person to whom paragraph 14 of Schedule 4 applied (accommodation provided by a close relative); and

(b)after 31st March 1993, either—

(i)he moved from the home in which he was residing on that date to another residential care home or nursing home, or

(ii)the ownership of the home changed,

and in the home to which he moved, or as the case may be, following the change of ownership, the accommodation and meals (if any) are provided for him by a person other than a close relative of his [F192or of any member] of his family, and are provided on a commercial basis.

(1ZD) Where a person has a preserved right under paragraph (1ZC), that right shall commence on the first full day of residence in the residential care home or nursing home to which he moved, or as the case may be, the day after the ownership of the [F193home] changed.

(1ZE) [F194In England and Wales,] a person does not have a preserved right by virtue of paragraph (1ZB)(a)(ii) or (1ZC) where the residential care home in which he was living provided both board and personal care for less than 4 persons.

[F195(1ZEA) Where, in Scotland, a person would have had a preserved right by virtue of paragraph (1ZB)(a)(ii) or (1ZC) but for the provisions of paragraph (1ZE) as it originally had effect, that person shall be treated from the date this regulation has effect in respect of him as though the first two paragraphs referred to continued to have effect in his case.]

(1ZF) Paragraphs (1ZB) and (1ZC) shall cease to apply to a person who has a preserved right where he is absent from a residential care home or nursing home and that absence exceeds a period of—

(a)except in a case to which sub-paragraph (b) applies—

(i)4 weeks, where the person was before his absence a temporary resident in the home, or,

(ii)13 weeks, where the person was before his absence a permanent resident in the home; or

(b)52 weeks where throughout the period of absence the person was a patient.

(1ZG) (a) A person who acquired a preserved right under paragraph (1ZB) or (1ZC) shall cease to have that right where either—

(i)he moves from the home he resided in, or would but for an absence specified in paragraph (1ZB)(b) have resided in, on 31st March 1993 to another residential care home or nursing home, or

(ii)the ownership of that home changes;

and in the home to which he moves or, as the case may be, following the change of ownership, the accommodation and meals (if any) are provided for him by a close relative of his [F196or of any member] of his family, [F196or are provided] otherwise than on a commercial basis;

(b)a preserved right acquired under paragraph (1ZB) or (1ZC) which ceased to apply to a person in accordance with sub-paragraph (a) shall, notwithstanding that paragraph, revive and again apply in his case where—

(i)he moves from the home mentioned in sub-paragraph (a)(i) to another residential care home or nursing home, or

(ii)the ownership of that home changes, or in the case of a home mentioned in sub-paragraph (a)(ii), changes again,

and in the home to which he moves or, as the case may be, following the change or further change of ownership, the accommodation and meals (if any) are provided for him otherwise than by a close relative of his [F197or of any member] of his family, and are provided on a commercial basis.

(1ZH) For the purposes of paragraphs (1ZB) and (1ZF) a person is a permanent resident in a residential care home or nursing home where the home is his principal place of abode, and a temporary resident where it is not.

(1ZJ) For the avoidance of doubt, the expression “residential care home” in paragraphs (1ZB) and (1ZE) has the meaning it bore on 31st March 1993.]

[F198(1ZK) Where a person—

(a)formerly had a preserved right by virtue of paragraph (1ZB); and

(b)on 1st April 1993 was living in a home which was exempt from registration under Part I of the Registered Homes Act 1984 pursuant to section 1(4)(a) of that Act (exemption from registration in respect of certain homes) because one or more of the residents were treated as relatives pursuant to section 19(4) of that Act; and

(c)is living in that home on 4th October 1993; and

(d)between 1st April 1993 and 4th October 1993 he has not been absent from that home, or has been absent from it for a period not exceeding 13 weeks;

then subject to paragraph (1ZL) that person shall be treated for the purposes of this regulation as though he had a preserved right on and after 4th October 1993.

(1ZL) Paragraph (1ZK) shall cease to apply to a person who is treated as though he had a preserved right where he is absent from a residential care home or nursing home and that absence exceeds a period of—

(a)except in a case to which sub-paragraph (b) applies, 13 weeks; or

(b)52 weeks where throughout the period of absence the person was a patient.]

[F199(1ZM) Where a person is treated in accordance with paragraph (1ZK) as having a preserved right, paragraph (1ZG) shall apply to that person as if he had acquired a preserved right under paragraph (1ZB).]

[F200(1ZN) Where a person—

(a)on 31st March 1993 was a member of a couple and his partner acquired a preserved right under paragraph (1ZB)(a)(i);

(b)before 3rd October 1994 ceased to be a member of a couple; and

(c)between 31st March 1993 and 3rd October 1994 has been living in a residential care home or a nursing home,

he shall be treated for the purposes of this regulation as having a preserved right from 3rd October 1994.

(1ZO) Subject to paragraph (1ZG), where a person would have been living in a residential care home or nursing home on 31st March 1993 but for an absence which, including that day, does not exceed—

(a)where the person was before his absence a temporary resident in the home, 4 weeks; or

(b)where the person was before his absence a permanent resident in the home, 13 weeks; or

(c)where throughout the period of absence the person was a patient, 52 weeks,

and the provisions of paragraph (1ZN) would have applied to him but for that absence, he shall be treated as having a preserved right from 3rd October 1994.

(1ZP) Where a person is treated as having a preserved right in accordance with paragraphs (1ZK), (1ZN) or (1ZO) above, paragraph (1ZG) shall apply to that person as if he had acquired a preserved right under paragraph (1ZB).

(1ZQ) Where a person to whom paragraph (IZO) refers is absent from a residential care home or nursing home in the period from 31st March 1993 to 3rd October 1994 for a period which exceeds a period to which paragraph (1ZO) refers and which is appropriate in his case, he shall cease to be treated as having a preserved right.]

[F201(1ZR) A person who acquired a preserved right under paragraph (1ZB) or (1ZC) shall cease to have that right if —

(a)he resides in a home which falls within sub-paragraph (c) of the definition of “residential care home" in paragraph (3) (homes run by the Abbeyfield Society) and which is not registered or deemed to be registered under any of the enactments referred to in sub-paragraph (a) or (e) of that definition;

(b)he requires personal care, including assistance with bodily functions, and that residential care home does not provide such care; and

(c)he, or a person on his behalf, contracts with another person or body to provide that care,

but that preserved right shall revive if any of the conditions specified in sub-paragraphs (a) to (c) above ceases to apply and that person would, but for this provision, have retained that right.]

[F186(1A) For the purposes of paragraph (1)(b) [F202and Schedule 4] a claimant and the members of his family are to be taken as living in a residential care home or nursing home even during periods when one or more members of the family are temporarily absent from the home but only if the claimant or his partner is living in the home during any such period.]

(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 F203 (transitional provisions), in accordance with paragraph 1 of Schedule 1A to the Supplementary Benefit Requirements Regulations 1983 F204 (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—

“residential care home” means an establishment—

[F217and in paragraphs (b) and (d) of this definition “personal care” means personal care for persons in need of personal care by reason of [F218old] age, disablement, past or present dependence on alcohol or drugs, or past or present mental disorder.]

“temporary absence” means—

(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.

[F220(5) Notwithstanding the foregoing paragraphs of this regulation, where–

(a)a person has been registered under the Registered Homes Act 1984 in respect of premises which have been carried on as a residential care home or, as the case may be, a nursing home, and that person has ceased to carry on such a home; and

(b)an application for registration under that Act has been made by another person and that application has not been determined or abandoned,

the applicable amount of a person resident in those premises shall be determined under Schedule 4 as if the most recent registration under the Registered Homes Act 1984 in respect of those premises continued until the day on which the application is determined or abandoned.]

Applicable amounts for persons in board and lodging accommodation and hostelsE+W+S

F22120.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Special casesE+W+S

21.—(1) Subject to [F222regulation 21ZA (treatment of refugees) and] [F223regulation 22A] (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, [F224except as provided in regulation 44(1) (modifications in respect of children and young persons)], would exceed £3,000.

[F225(1A) Except where the amount prescribed in Schedule 7 in respect of a person to whom paragraph (1) applies includes an amount applicable under regulation 17(1)(d) or 18(1)(e), a person to whom paragraph (1) applies shall be treated as not being severely disabled.]

(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) [F226Subject to paragraph (3F),] in Schedule 7—

“person from abroad” means a person, who—

[F234“person from abroad” also means a claimant who is not habitually resident in the United Kingdom, [F235the Channel Islands, the Isle of Man or the Republic of Ireland], but for this purpose, no claimant shall be treated as not habitually resident in the United Kingdom who is—

“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 1975F237.

[F238“prisoner” means a person who—

other than a person [F239who is detained in hospital under the provisions of the Mental Health Act 1983, or, in Scotland, under the provisions of the Mental Health (Scotland) Act 1984 or the Criminal Procedure (Scotland) Act 1995,]]

[F240“residential accommodation” means, subject to the following provisions of this regulation, accommodation provided by a local authority in a home owned or managed by that or another local authority—

where the accommodation is provided for a person whose stay in that accommodation has become other than temporary.]

[F243(3A) Where on or after 12th August 1991 a person is in, or only temporarily absent from, residential accommodation within the meaning of paragraph (3) and that accommodation subsequently becomes a residential care home within the meaning of regulation 19 (applicable amounts for persons in residential care and nursing homes) that person shall continue to be treated as being in residential accommodation within the meaning of paragraph (3) if, and for so long as, he remains in the same accommodation F244....]

[F245(3B) In a case where on 31st March 1993 a person was in or was temporarily absent from accommodation provided under section 26 of the National Assistance Act 1948, the definition of “residential accommodation” in paragraph (3) shall have effect in relation to that case as if for the words “provided by a local authority in a home owned or managed by that or another authority” there were substituted the words “provided in accordance with arrangements made by a local authority”, and for the words in sub-paragraph (a) “under sections 21 to 24F246...” there were substituted the words “under section 26”.

(3C) In a case where on 31st March 1993 a person was in or was temporarily absent from accommodation provided by a local authority under section 21 of the National Assistance Act 1948, the definition of “residential accommodation” in paragraph (3) shall have effect in relation to that case as if, after the words “by that or another [F247local] authority” there were inserted the words “or provided in accordance with arrangements made by a local authority”.]

[F248(3D) In Scotland, in a case where on the 31st March 1993 a person was in or was temporarily absent from accommodation provided under section 13B in a private or voluntary sector home, section 59(2)(c) of the Social Work (Scotland) Act 1968 or section 7 of the Mental Health (Scotland) Act 1984 in a voluntary or private sector home, the definition of “residential accommodation” in paragraph (3) shall have effect in that case as if—

(a)for the words “provided by a local authority in a home owned or managed by that or another local authority” there were substituted the words “provided in accordance with arrangements made by a local authority”; and

(b)for the words in sub-paragraph (b) “under section 13B or 59” there were substituted the words “under section 13B or 59(2)(c)”;

and for the purpose of this paragraph the definition of “residential accommodation” above shall continue to have effect as though the words “other than in premises registered under section 61 of that Act (registration) and which are used for the rehabilitation of alcoholics or drug addicts,” were retained at the end of sub-paragraph (b) of the definition.

(3E) In Scotland, in a case where on 31st March 1993 a person was in or was temporarily absent from accommodation the provision of which was secured by a local authority under section 13B in a home owned or managed by that or another local authority, section 59(2)(a) or (b) of the Social Work (Scotland) Act 1968, or section 7 of the Mental Health (Scotland) Act 1984 in a home owned or managed by that or another local authority, the definition of “residential accommodation” in paragraph (3) shall have effect in relation to that case as if, after the words “by that or another local authority” there were inserted the words “or provided in accordance with arrangements made by a local authority”.]

[F249(3F) In paragraph (3) “person from abroad” does not include any person in Great Britain who left the territory of Montserrat after 1st November 1995 because of the effect on that territory of a volcanic eruption.]

(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

F250(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F251(c)for whom board is not provided.]

[F252(4A) [F253In paragraph (4), sub-paragraph (c)] in the definition of “residential accommodation” shall apply only to accommodation—

(a)where no cooked or prepared food is made available to the claimant in consequence solely of his paying the charge for the accommodation or any other charge which he is required to pay as a condition of occupying the accommodation, or both of those charges, or

(b)where such food is actually made available for his consumption on payment of a further charge or charges.]

[F254(4B) In the case of a person who on 31st March 1993 was either in or only temporarily absent from, residential accommodation within the meaning of regulation 21(3) as then in force, paragraph (4) shall apply as if sub-paragraph (c) was omitted.]

(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.

[F255Treatment of refugeesE+W+S

21ZA.—(1) Where a person has submitted a claim for asylum and is notified that he has been recorded by the Secretary of State as a refugee within the definition in Article 1 of the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 as extended by Article 1(2) of the Protocol relating to the Status of Refugees done at New York on 31st January 1967 he shall cease to be a person from abroad for the purposes of regulation 21 (special cases) and Schedule 7 (applicable amounts in special cases) from the date he is so recorded.

(2) Except in the case of a refugee to whom paragraph (3) refers, a refugee to whom paragraph (1) applies, who claims income support within 28 days of receiving the notification referred to in that paragraph, shall have his claim for income support for whichever of the periods referred to in paragraph (4) applies in his case determined as if he had been an asylum seeker for the purposes of regulation 70 (urgent cases) in respect of any such period.

(3) A refugee to whom paragraph (1) applies, who was notified that he had been recorded as a refugee in the period from 24th July 1996 to 15th October 1996 and who claims income support within 28 days of the later date, shall have his claim for income support for whichever of the periods referred to in paragraph (4) applies in his case determined as if he had been an asylum seeker for the purposes of regulation 70 in respect of any such period.

(4) The periods to which this paragraph refers are—

(a)in the case of a claimant who made a claim for asylum upon arrival in the United Kingdom, the period from the date on which his claim for asylum was first refused by the Secretary of State or 5th February 1996 if that is later, to the date he is recorded by the Secretary of State as a refugee;

(b)in the case of a claimant whose claim for asylum is made other than on arrival in the United Kingdom, the period from the date of that claim, or 5th February 1996 if that is later, to the date he is recorded by the Secretary of State as a refugee.

(5) Any income support, which has otherwise been paid to the claimant or any partner of his in respect of any part of the period of an award to which paragraph (2) or (3) applies, shall be offset against any award due to the claimant by virtue of that paragraph except to the extent that the benefit paid to that partner was due in respect of a period during which he was not a partner of the claimant.]

Reductions in applicable amounts in certain cases of failure to attend coursesE+W+S

F25621A.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Reductions in applicable amounts in certain cases of actual or notional unemployment benefit disqualificationE+W+S

F25722.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F258Reduction in applicable amount where the claimant is appealing against a decision [F259which embodies a determination] that he is not incapable of workE+W+S

22A.—(1) Subject to paragraph (3), where a claimant falls within paragraph 25 of Schedule 1B (persons appealing against a decision [F260which embodies a determination] that they are not incapable of work under the all work test), and none of the other paragraphs of that Schedule applies to him, his applicable amount shall be reduced by a sum equivalent to 20 per cent. of the following amount—

(a)in the case of a person to whom regulation 17 or 18 or paragraphs 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), (b) or (c), as the case may be, of Schedule 2 (applicable amounts);

(ii)where he is a single claimant aged not less than 18 but less than 25 or a member of a couple or a polygamous marriage where one member is aged not less than 18 but less than 25 and the other member, or in the case of a polygamous marriage each other member, is a person under 18 who—

(aa)does not qualify for income support under regulation 4ZA, or who would not so qualify if he were to make a claim; and

(bb)does not satisfy the requirements of section 3(1)(f)(iii) of the Jobseekers Act 1995 (prescribed circumstances for persons aged 16 but less than 18); and

(cc)is not the subject of a direction under section 16 of the Jobseekers Act 1995 (persons under 18: severe hardship),

(iii)where he is a single claimant aged not less than 25 or a member of a couple or a polygamous marriage (other than a member of a couple or a polygamous marriage to whom head (ii) of this sub-paragraph applies) at least one of whom is aged not less than 18, the amount specified in paragraph 1(1)(e) of that Schedule;

(b)in the case of a person to whom regulation 19 applies (applicable amounts for people in residential care and nursing homes), the amount allowed for personal expenses for him specified in paragraph 13 of Schedule 4.

(2) A reduction under paragraph (1) 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.

(3) Paragraph (1) shall not apply to a claimant who is appealing against a decision [F261which embodies a determination] that he is not incapable of work under the all work test where that [F262determination] was made on the first application of the test to the claimant, and the claimant was, immediately prior to 13th April 1995, either—

(a)in receipt of invalidity pension under Part II of the Contributions and Benefits Act as then in force, or severe disablement allowance; or

(b)incapable of work in accordance with paragraph 5 of Schedule 1 as in force on 12th April 1995 and had been so for a continuous period of 28 weeks.]

PART VE+W+SINCOME AND CAPITAL

CHAPTER IE+W+Sgeneral