The State Pension Credit Regulations (Northern Ireland) 2003

Made: 21st January 2003

Coming into operation: 6th October 2003

The Department for Social Development, in exercise of the powers conferred by section 171(3) to (5) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992[^f00001], and now vested in it[^f00002], sections 6(4A), 8(4A) and 10(4) of the Social Security Fraud Act (Northern Ireland) 2001[^f00003] and sections 1(5), 2(3), (4) and (6), 3(4) to (8), 4(3), 5, 6(2), 7(4) and (7), 9(4) and (5), 12(2) and (3), 15, 16(2) and 17(2) of the State Pension Credit Act (Northern Ireland) 2002[^f00004], and of all other powers enabling it in that behalf, by this statutory rule, which contains only regulations made by virtue of, or consequential upon, provisions of the State Pension Credit Act (Northern Ireland) 2002 and which is made before the end of the period of six months beginning with the coming into operation of those provisions[^f00005], hereby makes the following Regulations:

PART I — GENERAL

Citation, commencement and interpretation

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• (1) These Regulations may be cited as the State Pension Credit Regulations (Northern Ireland) 2002 and shall come into operation on 6th October 2003.

• (2) In these Regulations –

• “the Act” means the State Pension Credit Act (Northern Ireland) 2002;

• “the 1972 Order” means the Health and Personal Social Services (Northern Ireland) Order 1972[^f00006];

• “the Welfare Reform Act” means the Welfare Reform Act (Northern Ireland) 2007;

• “adoption leave” means a period of absence from work on ordinary or additional adoption leave in accordance with Article 107A or 107B of the Employment Rights (Northern Ireland) Order 1996;

• “the appointed day” means the day appointed under section 13(3) of the Act;

• “the Armed Forces and Reserve Forces Compensation Scheme” means the scheme established under section 1(2) of the Armed Forces (Pensions and Compensation) Act 2004;

• “attendance allowance” means –an attendance allowance under section 64 of the Contributions and Benefits Act;an increase of disablement pension under section 104 or 105 of the Contributions and Benefits Act;a payment under regulations made in exercise of the power conferred by paragraph 4(2)(b) of Part II of Schedule 8 to the Contributions and Benefits Act;an increase of an allowance which is payable in respect of constant attendance under paragraph 4 of Part II of Schedule 8 to the Contributions and Benefits Act;a payment by virtue of Article 14, 15, 16, 43 or 44 of the Personal Injuries (Civilians) Scheme 1983[^f00007] or any analogous payment; or any payment based on a need for attendance which is paid as part of a war disablement pension, or any other such payment granted in respect of disablement which falls within regulation 15(5)(ac);

• “benefit week” means the period of 7 days beginning on the day on which, in the claimant’s case, state pension credit is payable;

• “board and lodging accommodation” means accommodation provided to a person or, if he is a member of a family, to him or any other member of his family, for a charge which is inclusive of—the provision of that accommodation; andat least some cooked or prepared meals which both are cooked or prepared (by a person other than the person to whom the accommodation is provided or a member of his family) and are consumed in that accommodation or associated premises,but not accommodation provided by a close relative of his or of his partner, or other than on a commercial basis;

• “the Claims and Payments Regulations” means the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987[^f00008];

• “close relative” means a parent, parent-in-law, son, son-in-law, daughter, daughter-in-law, step-parent, step-son, step-daughter, brother, sister, or if any of the preceding persons is one member of a couple, the other member of that couple;

• “the Computation of Earnings Regulations” means the Social Security Benefit (Computation of Earnings) Regulations (Northern Ireland)1996;

• “contributory employment and support allowance” means a contributory allowance under Part 1 of the Welfare Reform Act (employment and support allowance);

• “couple” means—a man and woman who are married to each other and are members of the same household;a man and woman who are not married to each other but are living together as husband and wife;two people of the same sex who are civil partners of each other and are members of the same household; ortwo people of the same sex who are not civil partners of each other but are living together as if they were civil partners,and for the purposes of paragraph (d), two people of the same sex are to be regarded as living together as if they were civil partners if, but only if, they would be regarded as living together as husband and wife were they instead two people of the opposite sex;

• “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 part thereof not so occupied which it is impracticable or unreasonable to sell separately, together with – any agricultural land adjoining that dwelling, andany land not adjoining that dwelling which it is impracticable or unreasonable to sell separately;

• “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;

• “the Employment and Support Allowance Regulations” means the Employment and Support Allowance Regulations (Northern Ireland) 2008;

• “equity release scheme” means a loan –made between a person (“the lender”) and the claimant;by means of which a sum of money is advanced by the lender to the claimant by way of payments at regular intervals, andwhich is secured on a dwelling in which the claimant owns an estate or interest and which he occupies as his home;

• “full-time student” has the meaning prescribed in regulation 61(1) of the Income Support Regulations;

• “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;

• “the Graduated Retirement Benefit Regulations” means the Social Security (Graduated Retirement Benefit) Regulations (Northern Ireland) 2005;

• “a guaranteed income payment” means a payment under Article 14(1)(b) or Article 21(1)(a) of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2005;

• “the Housing Benefit Regulations” means the Housing Benefit Regulations (Northern Ireland) 2006;

• “the Housing Benefit (State Pension Credit) Regulations” means the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations (Northern Ireland) 2006;

• “income-related employment and support allowance” means an income-related allowance under Part 1 of the Welfare Reform Act (employment and support allowance);

• “the Income Support Regulations” means the Income Support (General) Regulations (Northern Ireland) 1987[^f00009];

• “independent hospital” has the meaning assigned to it by Article 2(2) of the Health and Personal Social Services (Quality, Improvement and Regulation) (Northern Ireland) Order 2003;

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• “the Independent Living Fund (2006)” means the Trust of that name established by a deed dated 10th April 2006 and made between the Secretary of State for Work and Pensions of the one part and Margaret Rosemary Cooper, Michael Beresford Boyall and Marie Theresa Martin of the other part;

• “the Jobseeker’s Allowance Regulations” means the Jobseeker’s Allowance Regulations (Northern Ireland) 1996[^f00010];

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

• “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;

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

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

• “nursing home” has the meaning it has for the purposes of the Health and Personal Social Services (Quality, Improvement and Regulation) (Northern Ireland) Order 2003 by virtue of Article 11 of that Order;

• “paternity leave” means a period of absence from work on leave in accordance with Article 112A or 112B of the Employment Rights (Northern Ireland) Order 1996;

• “patient”, except in Schedule 2, means a person (other than a prisoner) who is regarded as receiving free in-patient treatment within the meaning of regulation 2(4) and (5) of the Social Security (Hospital In-Patients) Regulations (Northern Ireland) 2005;

• “pension fund holder” means with respect to an occupational pension scheme, 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;

• “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;

• “prisoner” means a person who –is detained in custody pending trial or sentence upon conviction or under a sentence imposed by a court, oris on temporary release in accordance with the provisions of the Prison Act (Northern Ireland) 1953[^f00013],other than a person detained in hospital under the provisions of the Mental Health (Northern Ireland) Order 1986[^f00014];

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

• “residential care home” has the meaning it has for the purposes of the Health and Personal Social Services (Quality, Improvement and Regulation) (Northern Ireland) Order 2003 by virtue of Article 10 of that Order;

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

• “voluntary organisation” means any association carrying on or proposing to carry on any activities otherwise than for the purpose of gain by the association or by individual members of the association.

• “water charges” means any water and sewerage charges under Chapter I of Part VII of the Water and Sewerage Services (Northern Ireland) Order 2006 in so far as such charges are in respect of the dwelling which a person occupies as his home.

• (3) In these Regulations a member of a couple is referred to as a partner and both members are referred to as partners.

• (4) The Interpretation Act (Northern Ireland) 1954[^f00015] shall apply to these Regulations as it applies to an Act of the Assembly.

PART II — ENTITLEMENT AND AMOUNT

Persons not in Northern Ireland

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• (1) A person is to be treated as not in Northern Ireland if, subject to the following provisions of this regulation, he is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland.

• (2) No person shall be treated as habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland unless he has a right to reside in (as the case may be) the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland other than a right to reside which falls within paragraph (3).

• (3) A right to reside falls within this paragraph if it is one which exists by virtue of, or in accordance with, one or more of the following—

• (a) regulation 13 of the Immigration (European Economic Area) Regulations 2006;

• (b) regulation 14 of those Regulations, but only in a case where the right exists under that regulation because the person is—

• (i) a jobseeker for the purpose of the definition of “qualified person” in regulation 6(1) of those Regulations, or

• (ii) a family member (within the meaning of regulation 7 of those Regulations) of such a jobseeker;

• (c) Article 6 of Council Directive No. 2004/38/EC; or

• (d) Article 39 of the Treaty establishing the European Community (in a case where the person is seeking work in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland).

• (4) A person is not to be treated as not in Northern Ireland if he is—

• (a) a worker for the purposes of Council Directive No. 2004/38/EC;

• (b) a self-employed person for the purposes of that Directive;

• (c) a person who retains a status referred to in sub-paragraph (a) or (b) pursuant to Article 7(3) of that Directive;

• (d) a person who is a family member of a person referred to in sub-paragraph (a), (b) or (c) within the meaning of Article 2 of that Directive;

• (e) a person who has a right to reside permanently in the United Kingdom by virtue of Article 17 of that Directive;

• (f) a person who is treated as a worker for the purpose of the definition of “qualified person” in regulation 6(1) of the Immigration (European Economic Area) Regulations 2006 pursuant to—

• (i) regulation 5 of the Accession (Immigration and Worker Registration) Regulations 2004 (application of the 2006 Regulations in relation to a national of the Czech Republic, Estonia, Latvia, Lithuania, Hungary, Poland, Slovenia or the Slovak Republic who is an “accession State worker requiring registration”), or

• (ii) regulation 6 of the Accession (Immigration and Worker Authorisation) Regulations 2006 (right of residence of a Bulgarian or Romanian who is an “accession State national subject to worker authorisation”);

• (g) 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;

• (h) a person who has exceptional leave to enter or remain in the United Kingdom granted outside the rules made under section 3(2) of the Immigration Act 1971;

• (hh) a person who has humanitarian protection granted under those rules;

• (i) a person who is not a person subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act 1999 and who is in the United Kingdom as a result of his deportation, expulsion or other removal by compulsion of law from another country to the United Kingdom; ...

• (j) a person in Northern Ireland who left the territory of Montserrat after 1st November 1995 because of the effect on that territory of a volcanic eruption ; or

• (k) a person who—

• (i) arrived in Great Britain on or after 28th February 2009 but before 18th March 2011;

• (ii) immediately before arriving there had been resident in Zimbabwe; and

• (iii) before leaving Zimbabwe had accepted an offer, made by Her Majesty’s Government, to assist that person to move to and settle in the United Kingdom.

Persons temporarily absent from Northern Ireland

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A claimant’s entitlement to state pension credit during periods of temporary absence from Northern Ireland is to continue for up to 13 weeks if—

• (a) the period of the claimant’s absence from Northern Ireland is unlikely to exceed 52 weeks, and

• (b) while absent from Northern Ireland the claimant continues to satisfy the other conditions of entitlement to state pension credit.

Persons receiving treatment outside Northern Ireland

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• (1) For the purposes of the Act, a person who is not in Northern Ireland shall be treated as being in Northern Ireland during any period in which he is receiving treatment at a hospital or other institution outside Northern Ireland if the treatment is being provided under Articles 5[^f00021], 7 and 8 of the Health and Personal Social Services (Northern Ireland) Order 1972[^f00022] or pursuant to arrangements made under Article 14A of that Order[^f00023] or paragraph 13 of Schedule 3 to the Health and Personal Social Services (Northern Ireland) Order 1991[^f00024].

• (2) Paragraph (1) applies only where –

• (a) the “person” is the claimant or his partner, and

• (b) the claimant satisfied the conditions for entitlement to state pension credit immediately before he or, as the case may be, his partner, left Northern Ireland.

Persons treated as being or not being members of the same household

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• (1) A person is to be treated as not being a member of the same household as the claimant if –

• (a) he is living away from the claimant and –

• (i) he does not intend to resume living with the claimant, or

• (ii) his absence is likely to exceed 52 weeks except where 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;

• (b) he or the claimant is permanently in a residential care home , nursing home or an independent hospital;

• (c) he or the claimant is, or both are –

• (i) patients detained in accommodation provided under Article 110 of the Mental Health (Northern Ireland) Order 1986;

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

• (iii) on temporary release in accordance with the provisions of the Prison Act (Northern Ireland) 1953[^f00025];