PART VIE+W+SURGENT CASES

Urgent casesE+W+S

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

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

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

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

F1(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

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

[F2(b)is an asylum seeker for the purposes of paragraph 3A;]

[F3(c)is a person to whom sub-paragraph (i) of that definition (sponsored immigrant) applies and the person or persons who gave the undertaking to provide for his maintenance and accommodation has, as the case may be have, died;]

F4(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F5(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F5(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F5(g). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F5(h). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F5(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F5(j). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F6(3A) For the purposes of this paragraph, a person—

[F7(a)is an asylum seeker when he submits on his arrival (other than on his re-entry) in the United Kingdom from a country outside the Common Travel Area a claim for asylum to the Secretary of State that it would be contrary to the United Kingdom’s obligations under the Convention for him to be removed from, or required to leave, the United Kingdom and that claim is recorded by the Secretary of State as having been made; or

(aa)becomes, while present in Great Britain, an asylum seeker when—

(i)the Secretary of State makes a declaration to the effect that the country of which he is a national is subject to such a fundamental change in circumstances that he would not normally order the return of a person to that country, and

(ii)he submits, within a period of 3 months from the day that declaration was made, a claim for asylum to the Secretary of State under the Convention relating to the Status of Refugees, and

(iii)his claim for asylum under that Convention is recorded by the Secretary of State as having been made; and;]

[F8(b)ceases to be an asylum seeker—

(i)in the case of a claim for asylum which, on or after 5th February 1996, is recorded by the Secretary of State as having been determined (other than on appeal) or abandoned, on the date on which it is so recorded, or

(ii)in the case of a claim for asylum which is recorded as determined before 5th February 1996 and in respect of which there is either an appeal pending on 5th February 1996 or an appeal is made within the time limits specified in rule 5 of the Asylum Appeals (Procedure) Rules 1993, on the date on which that appeal is determined; and]

(3B) In paragraph (3A), “the Convention” means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and the protocol to that Convention[F9; and “the Common Travel Area" means the United Kingdom, the Channel Islands, the Isle of Man and the Republic of Ireland collectively.]]

(4) This regulation shall only apply to a person to whom paragraph (2)(b) [F10applies, where the income he is treated as possessing by virtue of regulation 42(3) (notional income)] is not readily available to him; and

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

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

Applicable amounts in urgent casesE+W+S

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

(a)except in a case to which [F11sub-paragraph (b), (c) or (d),] applies, a claimant' weekly applicable amount shall be the aggregate of—

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

(ii)the amount applicable under paragraph 2 of Schedule 2 in respect of any child or young person who is a member of his family except a child or young person whose capital, if calculated in accordance with Part V in like manner as for the claimant, [F12except as provided in regulation 44(1) (modifications in respect of children and young person)], would exceed £3,000;

(iii)the amount, if applicable, specified in [F13Part II or III of Schedule 2 (premiums)]; and

(iv)any amounts applicable under [F14regulation 17(1)(e) or, as the case may be, 18(1)(f) (housing costs)]; [F15and

(v)the amount of the protected sum which may be applicable to him determined in accordance with Schedule 3A][F16or, as the case may be, 3B];

[F17(vi)the amount, if applicable, specified in paragraph 2A of Schedule 2;]

(b)F18F19where the claimant is a resident in ... ... a residential care home or a nursing home [F20and has a preserved right], his weekly applicable amount shall be the aggregate of—

(i)90 per cent of the amount of the allowance for personal expenses prescribed in paragraph 13 (a) of Schedule 4 (applicable amounts of persons in residential care and nursing homes) F21... or, if he is a member of a couple or of a polygamous marriage, of the amount applicable in respect of both or all of them; and where regulation 22 (reduction in applicable amounts in certain cases of actual or notional unemployment benefit disqualification) applies, the reference in this head to 90 per cent of the amount so reduced shall be construed as a reference to 90 per cent of the relevant amount under that regulation reduced by the percentage specified in paragraph (1) or (2), as the case may be, of that regulation;

(ii)the amount applicable under paragraph 13 (b) to (e) of Schedule 4 F22... 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, [F12except as provided in regulation 44(1) (modifications in respect of children and young person)], would exceed £3,000;

(iii)the amount in respect of the weekly charge for his accommodation calculated in accordance with regulation 19 and Schedule 4 F23... except any amount in respect of a child or young person who is a member of the family and whose capital, if calculated in accordance with Part V in like manner as for the claimant, [F12except as provided in regulation 44(1) (modifications in respect of children and young person)], would exceed £3,000.

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

(i)[F2498 per cent] of the amount F25... referred to in column (2) of paragraph 13 (a) to (c) and (e) of Schedule 7 (applicable amounts in special cases) applicable to him;

(ii)the amount applicable under column (2) of paragraph 13 (d) of Schedule 7, in respect of any child or young person who is a member of his family except a child or young person whose capital, if calculated in accordance with Part V in like manner as for the claimant, [F12except as provided in regulation 44(1) (modifications in respect of children and young person)], would exceed £3,000;

F26(iii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F27(d)except where sub-paragraph (b) or (c) applies, in the case of a person to whom any paragraph, other than paragraph 17, in column (1) of Schedule 7 (special cases) applies, the amount shall be 90% of the amount applicable in column 2 of that Schedule in respect of the claimant and partner (if any), plus, if applicable—

(i)any amount in respect of a child or young person who is a member of the family except a child or young person whose capital, if calculated in accordance with Part V in like manner as for the claimant, [F12except as provided in regulation 44(1) (modifications in respect of children and young person)], would exceed £3,000;

(ii)any premium under [F28Part II or III of Schedule 2]; and

[F29(iii)any amounts applicable under regulation 17(1)(e) or, as the case may be, 18(1)(f)]][F30and

(iv)the amount of the protected sum which may be applicable to him determined in accordance with Schedule 3A][F31or, as the case may be, 3B].

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

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

F32(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F32(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F32(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F32(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F32(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F33(3) Where the calculation of a claimant’s applicable amount under this regulation results in a fraction of a penny that fraction shall be treated as a penny.]

Assessment of income and capital in urgent casesE+W+S

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

[F34(a)any income, other than a payment of income [F35or income in kind] made under the Macfarlane Trust[F36, the Macfarlane (Special Payments) Trust][F37, the Macfarlane (Special Payments) (No. 2) Trust][F38, the Fund[F39, the Eileen Trust ]] or [F40the Independent Living Funds] [F41or income to which [F42paragraph 5, 39(2), (3) or (4),] 40, [F43or 42] of Schedule 9 (disregard of income other than earnings) applies], possessed or treated as possessed by him shall be taken into account in full notwithstanding any provision in that Part disregarding the whole or any part of that income;]

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

(c)income treated as capital by virtue of [F44regulation 48(1), (2), (3) and (9)] (income treated as capital) shall be taken into account as income;

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

F45(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) The claimant' capital calculated in accordance with Part V, but including any capital referred to in paragraphs 3 and, to the extent that such assets as are referred to in paragraph 6 consist of liquid assets, 6 [F46and, except to the extent that the arrears referred to in paragraph 7 consist of arrears of housing benefit payable under Part II of the Act or Part II of the Social Security and Housing Benefits Act 1982, 7, 9(b), 19, 30 and 32 of Schedule 10] (capital to be disregarded) shall be taken into account in full and the amount of income support which would, but for this paragraph be payable under this regulation, shall be payable only to the extent that it exceeds the amount of that capital.