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The Employment and Support Allowance Regulations (Northern Ireland) 2008

Type Ni-Statutory-Rule

Publication 2008-07-01

Last updated 2026-02-01

State In force

Jurisdiction Northern Ireland

Department Government Printer for Northern Ireland

Source legislation.gov.uk

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(a) any payment which is made under or by the Macfarlane Trust, the Macfarlane (Special Payments) Trust, the Macfarlane (Special Payments) (No. 2) Trust, the Fund, the Eileen Trust, MFET Limited, the Skipton Fund, the Caxton Foundation, the Infected Blood Payment Scheme for Northern Ireland, the Scottish Infected Blood Support Scheme, an approved blood scheme, the London Emergencies Trust, the We Love Manchester Emergency Fund, the National Emergencies Trust , the Victims of Overseas Terrorism Compensation Scheme or the Independent Living Fund (2006); or

(b) any —

(i) Grenfell Tower payment;

(ii) child abuse payment;

(iii) Windrush payment.

(iv) Post Office compensation payment;

(v) LGBT Financial Recognition Scheme payment;

(vi) miscarriage of justice compensation payment.

Calculation of capital in the United Kingdom

113

Capital which a claimant possesses in the United Kingdom is to be calculated at its current market or surrender value less—

(a) where there would be expenses attributable to sale, 10 per cent.; and

(b) the amount of any encumbrance secured on it.

Calculation of capital outside the United Kingdom

114

Capital which a claimant possesses in a country outside the United Kingdom is to be calculated—

(a) in a case in which there is no prohibition in that country against the transfer to the United Kingdom of an amount equal to its current market or surrender value in that country, at that value;

(b) in a case where there is such a prohibition, at the price which it would realise if sold in the United Kingdom to a willing buyer,

less, where there would be expenses attributable to sale, 10 per cent. and the amount of any encumbrance secured on it.

Notional capital

115

(1) A claimant is to be treated as possessing capital of which the claimant has deprived himself for the purpose of securing entitlement to an employment and support allowance or increasing the amount of that allowance, or for the purpose of securing entitlement to, or increasing the amount of, income support or a jobseeker’s allowance except—

(a) where that capital is derived from a payment made in consequence of any personal injury and is placed on trust for the benefit of the claimant;

(b) to the extent that the capital which the claimant is treated as possessing is reduced in accordance with regulation 116;

(c) any sum to which paragraph 42(2)(a) of Schedule 9 (capital to be disregarded) applies which is administered in the way referred to in paragraph 42(1)(a) of that Schedule.

(2) Except in the case of—

(a) a discretionary trust;

(b) a trust derived from a payment made in consequence of a personal injury;

(d) a personal pension scheme;

(e) an occupational pension scheme or a payment made by the Board of the Pension Protection Fund where the claimant has not attained the qualifying age for state pension credit ; or

(f) any sum to which paragraph 42(2)(a) of Schedule 9 applies which is administered in a way referred to in paragraph 42(1)(a) of that Schedule,

any capital which would become available to the claimant upon application being made but which has not been acquired by the claimant is to be treated as possessed by the claimant but only from the date on which it could be expected to be acquired were an application made.

(3) Any payment of capital, other than a payment of capital specified in paragraph (5) or (5A) , made to a third party in respect of a single claimant or the claimant’s partner (but not a member of the third party’s family) is to be treated—

(a) in a case where that payment is derived from—

(i) a payment of any benefit under the benefit Acts,

(ii) a payment from the Armed Forces and Reserve Forces Compensation Scheme,

(iii) a war disablement pension, war widow’s pension or war widower’s pension, or

(iv) a pension payable to a person as a widow, widower or surviving civil partner under any power of Her Majesty otherwise than under any statutory provision to make provision about pensions for or in respect of persons who have been disabled or who have died in consequence of service as members of the armed forces of the Crown,

as possessed by that single claimant, if it is paid to that claimant, or by the claimant’s partner, if it is paid to that partner;

(b) in a case where that payment is a payment of an occupational pension, a pension or other periodical payment made under a personal pension scheme or a payment made by the Board of the Pension Protection Fund, as possessed by that single claimant or, as the case may be, by the claimant’s partner;

(c) in any other case, as possessed by that single claimant or the claimant’s partner to the extent that it is used for the food, ordinary clothing or footwear, household fuel, rent or rates for which housing benefit is payable or any housing costs to the extent that they are met under regulation 67(1)(c) and 68(1)(d) (housing costs) of that single claimant or, as the case may be, of the claimant’s partner, or is used for any water charges for which that claimant or partner is liable.

(4) Any payment of capital, other than a payment of capital specified in paragraph (5) or (5A) madeto a single claimant or the claimant’s partner in respect of a third party (but not in respect of another member of the claimant’s family) is to be treated as possessed by that single claimant or, as the case may be, the claimant’s partner, to the extent that it is kept or used by that claimant or used by or on behalf of the claimant’s partner.

(5) Paragraphs (3) and (4) shall not apply in respect of a payment of capital made—

(a) under or by the Macfarlane Trust, the Macfarlane (Special Payments) Trust, the Macfarlane (Special Payments) (No. 2) Trust, the Fund, the Eileen Trust , MFET Limited , the Independent Living Fund (2006), the Skipton Fund , the Caxton Foundation , the Infected Blood Payment Scheme for Northern Ireland, the Scottish Infected Blood Support Scheme, an approved blood scheme , the London Emergencies Trust, the We Love Manchester Emergency Fund , the National Emergencies Trust , the Victims of Overseas Terrorism Compensation Scheme or the London Bombings Relief Charitable Fund;

(b) pursuant to section 1 of the Employment and Training Act in respect of a claimant’s participation—

(i) in an employment programme specified in regulation 75(1)(a) of the Jobseeker’s Allowance Regulations,

(ii) in a training scheme specified in regulation 75(1)(b)(ii) of those Regulations, or

(iii) in a qualifying course within the meaning of regulation 17A(7) of those Regulations;

(ba) in respect of a person's participation in a scheme prescribed in regulation 3 of the Jobseeker's Allowance (Schemes for Assisting Persons to Obtain Employment) Regulations (Northern Ireland) 2014; or

(c) under an occupational pension scheme, in respect of a pension or other periodical payment made under a personal pension scheme or a payment made by the Board of the Pension Protection Fund where—

(i) a bankruptcy order has been made in respect of the person in respect of whom the payment has been made or, in Scotland, the estate of that person is subject to sequestration or a judicial factor has been appointed on that person’s estate under section 41 of the Solicitors (Scotland) Act 1980,

(ii) the payment is made to the trustee in bankruptcy or any other person acting on behalf of the creditors, and

(iii) the person referred to in head (i) and that person’s partner (if any) does not possess, or is not treated as possessing, any other income apart from that payment.

(5A) Paragraphs (3) and (4) shall not apply in respect of any of the following payments of capital—

(a) a Grenfell Tower payment;

(b) child abuse payment;

(d) a Post Office compensation payment;

(e) a vaccine damage payment;

(f) an LGBT Financial Recognition Scheme payment;

(g) a miscarriage of justice compensation payment.

(6) Where a claimant stands in relation to a company in a position analogous to that of a sole owner or partner in the business of that company, the claimant is to be treated as if that claimant were such sole owner or partner and in such a case—

(a) the value of the claimant’s holding in that company, notwithstanding regulation 111 (calculation of capital), is to be disregarded; and

(b) the claimant shall, subject to paragraph (7), be treated as possessing an amount of capital equal to the value or, as the case may be, the claimant’s share of the value of the capital of that company and the foregoing provisions of this Chapter are to apply for the purposes of calculating that amount as if it were actual capital which the claimant does possess.

(7) For so long as the claimant undertakes activities in the course of the business of the company, the amount which the claimant is treated as possessing under paragraph (6) is to be disregarded.

(8) Where a claimant is treated as possessing capital under any of paragraphs (1) to (6), the foregoing provisions of this Chapter are to apply for the purposes of calculating its amount as if it were actual capital which the claimant does possess.

(9) For the avoidance of doubt a claimant is to be treated as possessing capital under paragraph (1) only if the capital of which the claimant has deprived himself is actual capital.

Diminishing notional capital rule

116

(1) Where a claimant is treated as possessing capital under regulation 115(1) (notional capital), the amount which the claimant is treated as possessing—

(a) in the case of a week that is subsequent to—

(i) the relevant week in respect of which the conditions set out in paragraph (2) are satisfied, or

(ii) a week which follows that relevant week and which satisfies those conditions,

is to be reduced by an amount determined under paragraph (2);

(b) in the case of a week in respect of which sub-paragraph (a) does not apply but where—

(i) that week is a week subsequent to the relevant week, and

(ii) that relevant week is a week in which the condition in paragraph (3) is satisfied,

is to be reduced by the amount determined under paragraph (3).

(2) This paragraph applies to a benefit week or part-week where the claimant satisfies the conditions that—

(a) the claimant is in receipt of an income-related allowance; and

(b) but for regulation 115(1), the claimant would have received an additional amount of an income-related allowance in that benefit week or, as the case may be, that part-week,

and in such a case, the amount of the reduction for the purposes of paragraph (1)(a) is to be equal to that additional amount.

(3) Subject to paragraph (4), for the purposes of paragraph (1)(b) the condition is that the claimant would have been entitled to an income-related allowance in the relevant week, but for regulation 115(1), and in such a case the amount of the reduction is to be equal to the aggregate of—

(a) the amount of an income-related allowance to which the claimant would have been entitled in the relevant week but for regulation 115(1); and for the purposes of this sub-paragraph if the relevant week is a part-week that amount is to be determined by dividing the amount of an income-related allowance to which the claimant would have been so entitled by the number equal to the number of days in the part-week and multiplying the quotient by 7;

(b) the amount of housing benefit (if any) equal to the difference between the claimant’s maximum housing benefit and the amount (if any) of housing benefit which the claimant is awarded in respect of the benefit week, within the meaning of regulation 2(1) of the Housing Benefit Regulations (interpretation), which includes the last day of the relevant week.

(4) The amount determined under paragraph (3) is to be re-determined under that paragraph if the claimant makes a further claim for an income-related allowance and the conditions in paragraph (5) are satisfied, and in such a case—

(a) sub-paragraphs (a) and (b) of paragraph (3) shall apply as if for “relevant week” there were substituted “relevant subsequent week”; and

(b) subject to paragraph (6), the amount as re-determined is to have effect from the first week following the relevant subsequent week in question.

(5) The conditions are that—

(a) a further claim is made 26 or more weeks after—

(i) the date on which the claimant made a claim for an income-related allowance in respect of which the claimant was first treated as possessing the capital in question under regulation 115(1),

(ii) in a case where there has been at least one re-determination in accordance with paragraph (4), the date on which the claimant last made a claim for an income-related allowance which resulted in the weekly amount being re-determined, or

(iii) the date on which the claimant last ceased to be in receipt of an income-related allowance,

whichever last occurred; and

(b) the claimant would have been entitled to an income-related allowance but for regulation 115(1).

(6) The amount as re-determined pursuant to paragraph (4) is not to have effect if it is less than the amount which applied in that case immediately before the re-determination and in such a case the higher amount is to continue to have effect.

(7) For the purposes of this regulation—

“part-week” means a period to which Part 14 (periods of less than a week) applies;

“relevant week” means the benefit week or part-week in which the capital in question of which the claimant has deprived himself within the meaning of regulation 115(1)—was first taken into account for the purpose of determining the claimant’s entitlement to an income-related allowance, a jobseeker’s allowance or income support; orwas taken into account on a subsequent occasion for the purpose of determining or re-determining the claimant’s entitlement to an income-related allowance, a jobseeker’s allowance or income support on that subsequent occasion and that determination or re-determination resulted in the claimant beginning to receive, or ceasing to receive, an income-related allowance, a jobseeker’s allowance or income support,and where more than one benefit week or part-week is identified by reference to paragraphs (a) and (b) the later or latest such benefit week or, as the case may be, the later or latest such part-week;

“relevant subsequent week” means the benefit week or part-week which includes the day on which the further claim or, if more than one further claim has been made, the last such claim was made.

Capital jointly held

117

(1) Subject to paragraph (2), except where a claimant possesses capital which is disregarded under regulation 115(6) (notional capital), where a claimant and one or more persons are beneficially entitled in possession to any capital asset they are to be treated as if each of them were entitled in possession to the whole beneficial interest therein in an equal share and the foregoing provisions of this Chapter are to apply for the purposes of calculating the amount of capital which the claimant is treated as possessing as if it were actual capital which the claimant does possess.

(2) Any premises or land not wholly owned by the claimant are to be disregarded for such period as is reasonable in the circumstances to enable the collection of such information as is necessary to determine the treatment of capital in accordance with paragraph (1).

Calculation of tariff income from capital

118

(1) Except where the circumstances prescribed in paragraph (3) apply to the claimant, where the claimant’s capital calculated in accordance with this Part exceeds £6,000 it is to be treated as equivalent to a weekly income of £1 for each complete £250 in excess of £6,000 but not exceeding £16,000.

(2) Where the circumstances prescribed in paragraph (3) apply to the claimant and that claimant’s capital calculated in accordance with this Part exceeds £10,000, it is to be treated as equivalent to a weekly income of £1 for each complete £250 in excess of £10,000 but not exceeding £16,000.

(3) For the purposes of paragraph (2) the prescribed circumstances are that the claimant lives permanently in a residential care home, a nursing home, an Abbeyfield Home or an independent hospital.

(4) For the purposes of paragraph (3), a claimant is to be treated as living permanently in such home or hospital where the claimant is absent from a home or hospital referred to in that paragraph—

(a) in the case of a claimant over pensionable age, for a period not exceeding 52 weeks; and

(b) in any other case, for a period not exceeding 13 weeks.

(5) Notwithstanding paragraphs (1) and (2), where any part of the excess is not a complete £250 that part is to be treated as equivalent to a weekly income of £1.

(6) For the purposes of paragraphs (1) and (2), capital includes any income treated as capital under regulation 112 (income treated as capital) .

CHAPTER 8 — ...liable relatives payments

Interpretation

119

In this Chapter—

“claimant” includes a young claimant;

“claimant’s family” shall be construed in accordance with section 133 of the Contributions and Benefits Act (interpretation of Part 7 and supplementary provisions);

“housing costs” means those costs which may be met under paragraph 1(1) of Schedule 6;

“liable relative” means—a spouse, former spouse, civil partner or former civil partner of a claimant or of a member of the claimant’s family;a parent of a child or young person who is a member of the claimant’s family or of a young claimant;a person who has not been adjudged to be the father of a child or young person who is a member of the claimant’s family or of a young claimant where that person is contributing towards the maintenance of that child, young person or young claimant and by reason of that contribution the claimant may reasonably be treated as the father of that child, young person or young claimant;a person liable to maintain another person by virtue of section 74(6)(c) of the Administration Act (liability to maintain) where the latter is the claimant or a member of the claimant’s family,and, in this definition, a reference to a child’s, young person’s or young claimant’s parent includes any person in relation to whom the child, young person or young claimant was treated as a child or a member of the family;

“ordinary clothing and footwear” means clothing and footwear for normal daily use but does not include school uniforms;

“payment” means a periodical payment or any other payment made by or derived from a liable relative ... but it does not include any payment—arising from a disposition of property made in contemplation of, or as a consequence of—an agreement to separate,any proceedings for judicial separation, divorce or nullity of marriage, orany proceedings for separation, dissolution or nullity in relation to a civil partnership;made after the death of the liable relative;made by way of a gift but not in aggregate or otherwise exceeding £250 in the period of 52 weeks beginning with the date on which the payment, or if there is more than one such payment the first payment, is made; and, in the case of a claimant who continues to be in receipt of an income-related allowance at the end of the period of 52 weeks, this provision is to continue to apply thereafter with the modification that any subsequent period of 52 weeks is to begin with the first day of the benefit week in which the first payment is made after the end of the previous period of 52 weeks; made to a third party, or in respect of a third party, unless the payment is— in relation to the claimant or the claimant’s partner or is made or derived from a person falling within sub-paragraph (d) of the definition of liable relative , and...in respect of food, ordinary clothing or footwear, fuel, rent or rates for which housing benefit is payable, housing costs to the extent that they are met under regulation 67(1)(c) or 68(1)(d) (housing costs) or water charges;where having regard to the purpose of the payment, the terms under which it is made and its amount it is unreasonable to take it into account;in kind;to, or in respect of, a child or young person who is to be treated as not being a member of the claimant’s household under regulation 156 (circumstances in which a person is to be treated as being or not being a member of the same household);which is not a periodical payment, to the extent that any amount of that payment—has already been taken into account under this Part by virtue of a previous claim or determination,has been recovered under section 72 of the Administration Act[^f00117] (income support and other payments) or is currently being recovered, orat the time the determination is made, has been used by the claimant except where the claimant has deprived himself of that amount for the purpose of securing entitlement to an income-related allowance or increasing the amount of that allowance; to which paragraph 57 of Schedule 8 (sums to be disregarded in the calculation of income other than earnings) applies.

“periodical payment” means—a payment which is made or is due to be made at regular intervals ...;in a case where the liable relative has established a pattern of making payments at regular intervals, any such payment;any payment ..., that does not exceed the amount of an income-related allowance payable had that payment not been made;any payment representing a commutation of payments to which paragraph (a) or (b) applies whether made in arrears or in advance,but does not include a payment due to be made before the first benefit week pursuant to the claim which is not so made;

“young claimant” means a person aged 16 or over but under the age of 20 who makes a claim for an income-related allowance.

Treatment of ... liable relative payments

120

Subject to regulation 121 ... , a payment—

(a) to the extent that it is not a payment of income, is to be treated as income;

(b) is to be taken into account in accordance with the following provisions of this Chapter.

Disregard of payments treated as not relevant income

121

Where the Department treats any payment as not being relevant income for the purposes of section 72A of the Administration Act[^f00118] (payment of benefit where maintenance payments collected by Department), that payment is to be disregarded in calculating a claimant’s income.

Period over which periodical payments are to be taken into account

122

(1) The period over which a periodical payment is to be taken into account is to be—

(a) in a case where the payment is made at regular intervals, a period equal to the length of that interval;

(b) in a case where the payment is due to be made at regular intervals but is not so made, such number of weeks as is equal to the number (and any fraction is to be treated as a corresponding fraction of a week) obtained by dividing the amount of that payment by the weekly amount of that periodical payment as calculated in accordance with regulation 124(4) (calculation of the weekly amount of a liable relative payment);

(2) The period under paragraph (1) is to begin on the date on which the payment is treated as paid under regulation 125 (date on which a liable relative payment is to be treated as paid).

Period over which payments other than periodical payments are to be taken into account

123

(1) The period over which a payment other than a periodical payment (a “non-periodical payment”) is to be taken account shall be determined as follows.

(2) Except in a case where paragraph (4) applies, the number of weeks over which a non-periodical payment is to be taken into account shall be equal to the number obtained by dividing that payment by the amount referred to in paragraph (3).

(3) The amount is the aggregate of £2 and—

(a) the amount of employment and support allowance that would be payable had no payment been made; ...

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

(4) This paragraph applies in a case where a liable relative makes a periodical payment and a non-periodical payment concurrently and the weekly amount of the periodical payment (as calculated in accordance with regulation 124) is less than B.

(5) In a case where paragraph (4) applies, the non-periodical payment shall, subject to paragraphs (6) and (7), be taken into account over a period of the number of weeks equal to the number obtained by applying the formula—

$A B−C$

(6) If the liable relative ceases to make periodical payments, the balance (if any) of the non-periodical payment shall be taken into account over the number of weeks equal to the number obtained by dividing that balance by the amount referred to in paragraph (3).

(7) If the amount of any subsequent periodical payment varies, the balance (if any) of the non-periodical payment shall be taken into account over a period of the number of weeks equal to the number obtained by applying the formula—

$D B−E$

(8) The period under paragraph (2) or (5) shall begin on the date on which the payment is treated as paid under regulation 125 (date on which a child maintenance or liable relative payment is to be treated as paid) and the period under paragraph (6) or (7) shall begin on the first day of the benefit week in which the cessation or variation of the periodical payment occurred.

(9) Any fraction which arises by applying a calculation or formula referred to in this regulation shall be treated as a corresponding fraction of a week.

(10) In paragraphs (4) to (7)—

A	=	the amount of the non-periodical payment;
B	=	the aggregate of £2 and the amount of employment and support allowance that would be payable had the periodical payment not been made ...;
C	=	the weekly amount of the periodical payment;
D	=	the balance (if any) of the non-periodical payment;
E	=	the weekly amount of any subsequent periodical payment.

Calculation of the weekly amount of a... liable relative payment

124

(1) Where a periodical payment is made or is due to be made at intervals of one week, the weekly amount is to be the amount of that payment.

(2) Where a periodical payment is made or is due to be made at intervals greater than one week and those intervals are monthly, the weekly amount is to be determined by multiplying the amount of the payment by 12 and dividing the product by 52.

(3) Where a periodical payment is made or is due to be made at intervals and those intervals are neither weekly nor monthly, the weekly amount is to be determined by dividing that payment by the number equal to the number of weeks (including any part of a week) in that interval.

(4) Where a payment is made and that payment represents a commutation of periodical payments whether in arrears or in advance, the weekly amount is to be the weekly amount of the individual periodical payments so commuted as calculated under paragraphs (1) to (3) as appropriate.

(5) The weekly amount of a payment to which regulation 123 (period over which payments other than periodical payments are to be taken into account) applies, is to be equal to the amount of the divisor used in calculating the period over which the payment or, as the case may be, the balance is to be taken into account.

Date on which a... liable relative payment is to be treated as paid

125

(1) A periodical payment is to be treated as paid—

(a) in the case of a payment which is due to be made before the first benefit week pursuant to the claim, on the day in the week in which it is due to be paid which corresponds to the first day of the benefit week;

(b) in any other case, on the first day of the benefit week in which it is due to be paid unless, having regard to the manner in which an income-related allowance is due to be paid in the particular case, it would be more practicable to treat it as paid on the first day of a subsequent benefit week.

(2) Subject to paragraph (3), any other payment is to be treated as paid—

(a) in the case of a payment which is made before the first benefit week pursuant to the claim, on the day in the week in which it is paid which corresponds to the first day of the benefit week;

(b) in any other case, on the first day of the benefit week in which it is paid unless, having regard to the manner in which an income-related allowance is due to be paid in the particular case, it would be more practicable to treat it as paid on the first day of a subsequent benefit week.

(3) Any other payment paid on a date which falls within the period in respect of which a previous payment is taken into account, not being a periodical payment, is to be treated as paid on the first day following the end of that period.

Liable relative payments to be treated as capital

126

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CHAPTER 9 — Child support

Treatment of child support maintenance

127

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Calculation of the weekly amount of payments of child support maintenance

128

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Date on which child support maintenance is to be treated as paid

129

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Disregard of payments of child support maintenance treated as not relevant income

130

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

CHAPTER 10 — Students

Interpretation

131

(1) In this Chapter—

“academic year” means the period of 12 months beginning on 1st January, 1st April, 1st July or 1st September according to whether the course in question begins in the winter, the spring, the summer or the autumn respectively but if students are required to begin attending the course during August or September and to continue attending through the autumn, the academic year of the course is to be considered to begin in the autumn rather than the summer;

“access funds” means—grants made under Article 30 of the Education and Libraries (Northern Ireland) Order 1993[^f00120], or grants, loans or other payments made under Article 5 of the Further Education (Northern Ireland) Order 1997[^f00121] in each case being grants, or grants, loans or other payments, as the case may be, made for the purpose of assisting students in financial difficulties;grants made under section 68 of the Further and Higher Education Act 1992[^f00122] or section 74 of the Higher Education and Research Act 2017 for the purpose of providing funds on a discretionary basis to be paid to students;grants made under sections 73(a) and (c) and 74(1) of the Education (Scotland) Act 1980[^f00123];discretionary payments, known as “learner support funds”, which are made available to students in further education by institutions out of funds provided by the Learning and Skills Council for England under sections 5, 6 and 9 of the Learning and Skills Act 2000[^f00124]; orFinancial Contingency Funds made available by the Welsh Ministers;

“contribution” means—any contribution in respect of the income of a student or any person which the Department, the Scottish Ministers or an education authority takes into account in ascertaining the amount of a student’s grant or student loan; orany sums, which in determining the amount of a student’s allowance or bursary in Scotland under the Education (Scotland) Act 1980, the Scottish Ministers or education authority takes into account being sums which the Scottish Ministers or education authority considers that it is reasonable for the following persons to contribute towards the holder’s expenses—the holder of the allowance or bursary,the holder’s parents,the holder’s parent’s spouse, civil partner or a person ordinarily living with the holder’s parent as if he were the spouse or civil partner of that parent, orthe holder’s spouse or civil partner;

“course of advanced education” means—a course leading to a postgraduate degree or comparable qualification, a first degree or comparable qualification, a diploma of higher education or a higher national diploma; orany other course which is of a standard above advanced GNVQ, or equivalent, including a course which is of a standard above a general certificate of education (advanced level), a Scottish national qualification (higher or advanced higher);

“covenant income” means the income payable to a student under a Deed of Covenant by a person whose income is, or is likely to be, taken into account in assessing the student’s grant or award;

“education authority” means a government department, an education and library board established under Article 3 of the Education and Libraries Order[^f00125], a local education authority as defined in section 212(1) of the Education Act 2002[^f00126], an education authority as defined in section 123 of the Local Government (Scotland) Act 1973[^f00127], any body which is a research council for the purposes of the Science and Technology Act 1965[^f00128] or any analogous government department, authority, board or body, of the Channel Islands, Isle of Man or any other country outside the United Kingdom;

“full-time student” means a person who is not a qualifying young person or child within the meaning of section 138 of the Contributions and Benefits Act[^f00129] (child and qualifying young person) and who is—aged less than 19 and is attending or undertaking a full-time course of advanced education;aged 19 or over but under pensionable age and is attending or undertaking a full-time course of study at an educational establishment; oron a sandwich course;

“grant” (except in the definition of “access funds”) means any kind of educational grant or award and includes any scholarship, studentship, exhibition, allowance or bursary but does not include a payment from access funds or any payment to which paragraph 13 of Schedule 8 or paragraph 48 of Schedule 9 applies;

“grant income” means—any income by way of a grant;in the case of a student, other than one to whom paragraph (c) refers, any contribution which has been assessed whether or not it has been paid;in the case of a student who is a lone parent , is a person who has no partner and who is responsible for and a member of the same household as a young person or is a person to whom Part 4 applies, any contribution which has been assessed and which has been paid,and any such contribution which is paid by way of a covenant is to be treated as part of the student’s grant income;

“period of experience” means a period of work experience which forms part of a sandwich course;

“period of study” means—in the case of a course of study for one year or less, the period beginning with the start of the course and ending with the last day of the course;in the case of a course of study for more than one year, in the first or, as the case may be, any subsequent year of the course, other than the final year of the course, the period beginning with the start of the course or, as the case may be, that year’s start and ending with either—the day before the start of the next year of the course in a case where the student’s grant or loan is assessed at a rate appropriate to the student’s studying throughout the year or, if the claimant does not have a grant or loan, where a loan would have been assessed at such a rate had the claimant had one, orin any other case the day before the start of the normal summer vacation appropriate to the student’s course;in the final year of a course of study of more than one year, the period beginning with that year’s start and ending with the last day of the course;

“postgraduate loan” means a loan to a student undertaking a postgraduate master’s degree course or a postgraduate doctoral degree course pursuant to regulations made under section 22 of the Teaching and Higher Education Act 1998;

“sandwich course” has the meaning given by regulation 2(8) of the Education (Student Support) Regulations (Northern Ireland) 2007[^f00130], regulation 2(9) of the Education (Student Support) Regulations 2008[^f00131] or regulation 4(2) of the Education (Student Loans) (Scotland) Regulations 2007[^f00132];

“standard maintenance grant” means—except where paragraph (b) or (c) applies, in the case of a student attending or undertaking a course of study at the University of London or an establishment within the area comprising the City of London and the Metropolitan Police District, the amount specified for the time being in paragraph 2(2)(a) of Schedule 6 to the Students Awards Regulations[^f00133] for such a student;except where paragraph (c) applies, in the case of a student residing at the student’s parent’s home, the amount specified in paragraph 3 of Schedule 6 to the Students Awards Regulations;in the case of a student receiving an allowance or bursary under the Education (Scotland) Act 1980, the amount of money specified for the relevant year appropriate for the student set out in the Student Support in Scotland Guide issued by the Student Awards Agency for Scotland, or its nearest equivalent in the case of a bursary provided by a college of further education or a local education authority;in any other case, the amount specified in paragraph 2(2) of Schedule 6 to the Students Awards Regulations other than in head (a) or (b) of that sub-paragraph;

“student” means a person, other than a person in receipt of a training allowance, who is attending or undertaking a course of study at an educational establishment;

“student loan” means a loan towards a student’s maintenance pursuant to any regulations made under Article 3 of the Education (Student Support) (Northern Ireland) Order 1998[^f00134], section 22 of the Teaching and Higher Education Act 1998[^f00135] or sections 73(f), 73B and 74 of the Education (Scotland) Act 1980[^f00136] and is to include, in Scotland, amounts paid under regulation 4(1)(c) of the Students’ Allowances (Scotland) Regulations 2007[^f00137].

(2) For the purposes of the definition of “full-time student” in paragraph (1), a person is to be regarded as attending or, as the case may be, undertaking a full-time course of study, a full-time course of advanced education or as being on a sandwich course—

(a) subject to paragraph (3), in the case of a person attending or undertaking a part of a modular course which would be a full-time course of study for the purposes of this Part, for the period beginning on the day on which that part of the course starts and ending—

(i) on the last day on which the claimant is registered with the educational establishment as attending or undertaking that part as a full-time course of study, or

(ii) on such earlier date (if any) as the claimant finally abandons the course or is dismissed from it;

(b) in any other case, throughout the period beginning on the date on which the claimant starts attending or undertaking the course and ending on the last day of the course or on such earlier date (if any) as the claimant finally abandons it or is dismissed from it.

(3) For the purpose of sub-paragraph (a) of paragraph (2), the period referred to in that sub-paragraph is to include—

(a) where a person has failed examinations or has failed to successfully complete a module relating to a period when the claimant was attending or undertaking a part of the course as a full-time course of study, any period in respect of which the claimant attends or undertakes the course for the purpose of retaking those examinations or that module;

(b) any period of vacation within the period specified in that paragraph or immediately following that period except where the person has registered with the educational establishment to attend or undertake the final module in the course and the vacation immediately follows the last day on which the claimant is required to attend or undertake the course.

(4) In paragraph (2) “modular course” means a course of study which consists of 2 or more modules, the successful completion of a specified number of which is required before a person is considered by the educational establishment to have completed the course.

Calculation of grant income

132

(1) The amount of student’s grant income to be taken into account, subject to paragraphs (2) and (3), is to be the whole of the student’s grant income.

(2) There is to be disregarded from the amount of a student’s grant income any payment—

(a) intended to meet tuition fees or examination fees;

(b) intended to meet additional expenditure incurred by a disabled student in respect of that student’s attendance on a course;

(c) intended to meet additional expenditure connected with term time residential study away from the student’s educational establishment;

(d) on account of the student maintaining a home at a place other than that at which the student resides while attending the course but only to the extent that the student’s rent or rates are not met by housing benefit;

(e) on account of any other person but only if that person is residing outside of the United Kingdom and there is no applicable amount in respect of that person;

(f) intended to meet the cost of books and equipment;

(g) intended to meet travel expenses incurred as a result of the student’s attendance on the course;

(h) intended for the maintenance of a child dependant;

(i) intended for the child care costs of a child dependant.

(j) of higher education bursary for care leavers made under Part III of the Children Act 1989 or under Part 6 of the Social Services and Well-being (Wales) Act 2014.

(3) Where a student does not have a student loan or a postgraduate loan and is not treated as possessing a student loan or a postgraduate loan , there is to be excluded from the student’s grant income—

(a) the sum of £295 per academic year in respect of travel costs; and

(b) the sum of £390 per academic year towards the costs of books and equipment,

whether or not any such costs are incurred.

(4) Subject to paragraph (6), a student’s grant income, except any amount intended for the maintenance of adult dependants under Part 3 of Schedule 6 to the Students Awards Regulations, is to be apportioned—

(a) subject to paragraph (7), in a case where it is attributable to the period of study, equally between the weeks in the period beginning with the benefit week, the first day of which coincides with, or immediately follows, the first day of the period of study and ending with the benefit week, the last day of which coincides with, or immediately precedes, the last day of the period of study;

(b) in any other case, equally between the weeks in the period beginning with the benefit week, the first day of which coincides with, or immediately follows, the first day of the period for which it is payable and ending with the benefit week, the last day of which coincides with, or immediately precedes, the last day of the period for which it is payable.

(5) Any grant in respect of an adult dependant paid under Article 44(2) of the Health and Personal Social Services Order (provisions relating to training) and any amount intended for the maintenance of an adult dependant under the provisions referred to in paragraph (4) is to be apportioned equally over a period of 52 weeks or, if there are 53 benefit weeks (including part-weeks) in the year, 53 weeks.

(6) In a case where a student is in receipt of a student loan or where that student could have acquired a student loan by taking reasonable steps but had not done so, any amount intended for the maintenance of an adult dependant under provisions other than those referred to in paragraph (4) is to be apportioned over the same period as the student’s loan is apportioned or, as the case may be, would have been apportioned.

(7) In the case of a student on a sandwich course, any period of experience within the period of study is to be excluded and the student’s grant income is to be apportioned equally between the weeks in the period beginning with the benefit week, the first day of which immediately follows the last day of the period of experience and ending with the benefit week, the last day of which coincides with, or immediately precedes, the last day of the period of study.

Calculation of covenant income where a contribution is assessed

133

(1) Where a student is in receipt of income by way of a grant during a period of study and a contribution has been assessed, the amount of the student’s covenant income to be taken into account for that period and any summer vacation immediately following is to be the whole amount of the student’s covenant income less, subject to paragraph (3), the amount of the contribution.

(2) The weekly amount of the student’s covenant income is to be determined—

(a) by dividing the amount of income which falls to be taken into account under paragraph (1) by 52 or, if there are 53 benefit weeks (including part-weeks) in the year, 53; and

(b) by disregarding from the resulting amount, £5.

(3) For the purposes of paragraph (1), the contribution is to be treated as increased by the amount, if any, by which the amount excluded under regulation 132(2)(g) falls short of the amount for the time being specified in paragraph 7(2) of Schedule 6 to the Students Awards Regulations (travel expenditure).

Calculation of covenant income where no grant income or no contribution is assessed

134

(1) Where a student is not in receipt of income by way of a grant the amount of the student’s covenant income is to be calculated as follows—

(a) any sums intended for any expenditure specified in regulation 132(2)(a) to (e), necessary as a result of the student’s attendance on the course, are to be disregarded;

(b) any covenant income, up to the amount of the standard maintenance grant, which is not so disregarded is to be apportioned equally between the weeks of the period of study and there is to be disregarded from the covenant income to be so apportioned the amount which would have been disregarded under regulation 132(2)(f) and (g) and (3) had the student been in receipt of the standard maintenance grant;

(c) the balance, if any, is to be divided by 52 or, if there are 53 benefit weeks (including part-weeks) in the year, 53 and treated as weekly income of which £5 is to be disregarded.

(2) Where a student is in receipt of income by way of a grant and no contribution has been assessed, the amount of the student’s covenant income is to be calculated in accordance with paragraph (1), except that—

(a) the value of the standard maintenance grant is to be abated by the amount of the student’s grant income less an amount equal to the amount of any sums disregarded under regulation 132(2)(a) to (e); and

(b) the amount to be disregarded under paragraph (1)(b) is to be abated by an amount equal to the amount of any sums disregarded under regulation 132(2)(f) and (g) and (3).

Relationship with amounts to be disregarded under Schedule 8

135

No part of a student’s covenant income or grant income is to be disregarded under paragraph 15 of Schedule 8 (charitable and voluntary payments).

Other amounts to be disregarded

136

(1) For the purposes of ascertaining income other than grant income, covenant income and loans treated as income in accordance with regulation 137, any amounts intended for any expenditure specified in regulation 132(2) necessary as a result of the student’s attendance on the course is to be disregarded but only if, and to the extent that, the necessary expenditure exceeds or is likely to exceed the amount of the sums disregarded under regulations 132(2) and (3), 133(3), 134(1)(a) or (b) and 137(6) on like expenditure.

(2) Where a claim is made in respect of any period in the normal summer vacation and any income is payable under a Deed of Covenant which commences or takes effect after the first day of that vacation, that income is to be disregarded.

Treatment of student loans

137

(1) A student loan and postgraduate loan is to be treated as income unless it is a specified loan or award in which case it is to be disregarded.

(2) For the purposes of paragraph (1), a “specified loan or award” means—

(a) an award made by the Department for Employment and Learning under Article 51 of the Education and Libraries Order[^f00138];

(b) a loan made by the Higher Education Funding Council for England or the Higher Education Funding Council for Wales under section 65 of the Further and Higher Education Act 1992[^f00139];

(c) a loan made by an educational institution from funds it has received under the Education (Access Funds) (Scotland) Regulations 1990[^f00140].

(3) In calculating the weekly amount of the loan to be taken into account as income—

(a) in respect of a course that is of a single academic year’s duration or less, a loan which is payable in respect of that period is to be apportioned equally between the weeks in the period beginning with—

(i) except in a case where head (ii) applies, the benefit week, the first day of which coincides with, or immediately follows, the first day of the single academic year,

(ii) where the student is required to start attending the course in August or where the course is less than an academic year’s duration, the benefit week, the first day of which coincides with, or immediately follows, the first day of the course,

and ending with the benefit week, the last day of which coincides with, or immediately precedes, the last day of the course;

(b) in respect of an academic year of a course which starts other than on 1st September, a loan which is payable in respect of that academic year is to be apportioned equally between the weeks in the period beginning with the benefit week, the first day of which coincides with, or immediately follows, the first day of that academic year and ending with the benefit week, the last day of which coincides with, or immediately precedes, the last day of that academic year but excluding any benefit weeks falling entirely within the quarter during which, in the opinion of the Department, the longest of any vacation is taken;

(c) for the purposes of sub-paragraph (b), “quarter” has the meaning given by regulation 104(6) (calculation of income other than earnings);

(d) in respect of the final academic year of a course (not being a course of a single year’s duration), a loan which is payable in respect of that final academic year is to be apportioned equally between the weeks in the period beginning with—

(i) except in a case where head (ii) applies, the benefit week, the first day of which coincides with, or immediately follows, the first day of that academic year,

(ii) where the final academic year starts on 1st September, the benefit week, the first day of which coincides with, or immediately follows, the earlier of 1st September or the first day of the autumn term,

and ending with the benefit week, the last day of which coincides with, or immediately precedes, the last day of the course;

(e) in any other case, the loan is to be apportioned equally between the weeks in the period beginning with the earlier of—

(i) the first day of the first benefit week in September, or

(ii) the benefit week, the first day of which coincides with, or immediately follows, the first day of the autumn term,

and ending with the benefit week, the last day of which coincides with, or immediately precedes, the last day of June,

and, in all cases, from the weekly amount so apportioned there is to be disregarded £10.

(4) A student is to be treated as possessing a student loan or a postgraduate loan in respect of an academic year where—

(a) a student loan or a postgraduate loan has been made to that student in respect of that year; or

(b) subject to paragraph (4A) the student could acquire a student loan or a postgraduate loan in respect of that year by taking reasonable steps to do so.

(4A) A student is not to be treated as possessing any part of a student loan or postgraduate loan which has not been paid to that student in respect of an academic year where the educational institution at which the student was attending a course has confirmed in writing that the student has suspended attendance at the course due to a health condition or disability that renders the student incapable of continuing that course.

(5) Where a student is treated as possessing a student loan under paragraph (4), the amount of the student loan to be taken into account as income is to be, subject to paragraph (6)—

(a) in the case of a student to whom a student loan is made in respect of an academic year, a sum equal to the maximum student loan the student is able to acquire in respect of that year by taking reasonable steps to do so and either—

(i) in the case of a student other than one to whom head (ii) refers, any contribution whether or not it has been paid to that student, or

(ii) in the case of a student who is entitled to an income-related allowance by virtue of being a student to whom regulation 18 (circumstances in which the condition that the claimant is not receiving education does not apply) applies;

(b) in the case of a student to whom a student loan is not made in respect of an academic year, the maximum student loan that would be made to the student if—

(i) the student took all reasonable steps to obtain the maximum student loan that student is able to acquire in respect of that year, and

(ii) no deduction in that loan was made by virtue of the application of a means test.

(5A) Where a student is treated as possessing a postgraduate loan under paragraph (4) in respect of an academic year, the amount of that loan to be taken into account as income shall be, subject to paragraph (6), a sum equal to 30 per cent. of the maximum postgraduate loan the student is able to acquire in respect of that academic year by taking reasonable steps to do so.

(6) There is to be deducted from the amount of income taken into account under paragraph (5) or (5A) —

(a) the sum of £303 per academic year in respect of travel costs; and

(b) the sum of £390 per academic year towards the costs of books and equipment,

whether or not any such costs are incurred.

Treatment of payments from access funds

138

(1) This regulation applies to payments from access funds that are not payments to which regulation 142(2) or (3) (further income treated as capital) applies.

(2) A payment from access funds, other than a payment to which paragraph (3) applies, is to be disregarded as income.

(3) Subject to paragraph (4) and paragraph 38 of Schedule 8, any payments from access funds which are intended and used for food, ordinary clothing or footwear, household fuel, rent or rates for which housing benefit is payable or any housing costs to the extent that they are met under regulation 67(1)(c) or 68(1)(d) (housing costs), of a single claimant or, as the case may be, of the claimant’s partner, and any payments from access funds which are used for any water charges for which that claimant or partner is liable is to be disregarded as income to the extent of £20 per week.

(4) Where a payment from access funds is made—

(a) on or after 1st September or the first day of the course, whichever first occurs, but before receipt of any student loan in respect of that year and that payment is intended for the purpose of bridging the period until receipt of the student loan; or

(b) before the first day of the course to a person in anticipation of that person becoming a student,

that payment is to be disregarded as income.

Treatment of fee loans

139

A loan for fees, known as a fee loan or a fee contribution loan, made pursuant to regulations made under Article 3 of the Education (Student Support) (Northern Ireland) Order 1998, section 22 of the Teaching and Higher Education Act 1998 or section 73(f) of the Education (Scotland) Act 1980, is to be disregarded as income.

Disregard of contribution

140

Where the claimant or the claimant’s partner is a student and, for the purposes of assessing a contribution to the student’s grant or student loan, the other partner’s income has been taken into account, an amount equal to that contribution is to be disregarded for the purposes of assessing that other partner’s income.

Further disregard of student’s income

141

Where any part of a student’s income has already been taken into account for the purposes of assessing that student’s entitlement to a grant , student loan or postgraduate loan , the amount taken into account is to be disregarded in assessing that student’s income.

Student’s income treated as capital

142

(1) Any amount by way of a refund of tax deducted from a student’s income is to be treated as capital.

(2) An amount paid from access funds as a single lump sum is to be treated as capital.

(3) An amount paid from access funds as a single lump sum which is intended and used for an item other than food, ordinary clothing or footwear, household fuel, rent or rates for which housing benefit is payable or any housing costs to the extent that they are met under regulation 67(1)(c) or 68(1)(d), of a single claimant or, as the case may be, of the claimant’s partner, or which is used for an item other than any water charges for which that claimant or partner is liable, is to be disregarded as capital but only for a period of 52 weeks from the date of the payment.

Disregard of changes occurring during summer vacation

143

In calculating a student’s income there is to be disregarded any change in the standard maintenance grant occurring in the recognised summer vacation appropriate to the student’s course, if that vacation does not form part of the student’s period of study, from the date on which the change occurred up to the end of that vacation.

PART 11 — SUPPLEMENTARY PROVISIONS

CHAPTER 1 — Miscellaneous

Waiting days

144

(1) A claimant is not entitled to an employment and support allowance in respect of 7 days at the beginning of a period of limited capability for work.

(2) Paragraph (1) does not apply where—

(a) the claimant’s entitlement to an employment and support allowance commences within 12 weeks of the claimant’s entitlement to income support, incapacity benefit, severe disablement allowance, state pension credit, a jobseeker’s allowance, a carer’s allowance , carer support payment , statutory sick pay or a maternity allowance coming to an end;

(b) the claimant is terminally ill and has—

(i) made a claim expressly on the ground of being terminally ill, or

(ii) made an application for supersession or revision in accordance with the Decisions and Appeals Regulations which contains an express statement of being terminally ill; or

(c) the claimant has been discharged from being a member of Her Majesty’s forces and 3 or more days immediately before that discharge were days of sickness absence from duty, which are recorded by the Secretary of State for Defence.

(d) the claimant is the other member of a couple to whom regulation 4H(2) of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987 applies and the former claimant was not entitled to an employment and support allowance in respect of 7 days at the beginning of the period of limited capability for work which relates to the former claimant’s entitlement; or

(e) the claimant is entitled to an employment and support allowance by virtue of section 1B of the Act (further entitlement after time-limiting).

Linking rules

145

(1) Any period of limited capability for work which is separated from another such period by not more than 12 weeks is to be treated as a continuation of the earlier period.

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

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

(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Advance awards

146

(1) Where section 5 of the Act (advance award of income-related allowance) applies to a claim and the claimant satisfies the conditions in paragraph (2)—

(a) the claim is to be treated as if made for a period from the relevant day; and

(b) the Department may award an employment and support allowance from the relevant day.

(2) The conditions are that—

(a) the Department is of the opinion that unless there is a change of circumstances the claimant will satisfy the conditions set out in section 1(3)(b) to (f) of, and Part 2 of Schedule 1 to, the Act when an income-related allowance becomes payable under the award; and

(b) the claimant is treated as having limited capability for work in accordance with regulation 20, 25, 26, 30 or 33(2) for the period before an income-related allowance becomes payable under the award.

(3) Where an award is made under paragraph (1)—

(a) the award for an employment and support allowance shall become payable on the date on which the claimant would have been entitled to a main phase employment and support allowance if the claimant had satisfied the condition in paragraph 6(1)(a) of Schedule 1 to the Act before the relevant day;

(b) section 4(4)(a) or (5)(a) of the Act does not apply to that award.

(4) In this regulation the “relevant day” is the day after the end of a period of 13 weeks beginning on the first day on which the claimant would be entitled to an income-related allowance if the claimant satisfied the condition in paragraph 6(1)(a) of Schedule 1 to the Act.

Recovery orders

147

(1) Where an award of income-related allowance has been made to a claimant, the Department may apply to the court for a recovery order against the claimant’s partner.

(2) On making a recovery order the court may order the partner to pay such amount at such intervals as it considers appropriate, having regard to all the circumstances of the partner and, in particular, the partner’s income.

(3) A recovery order is to be treated for all purposes as if it were a maintenance order within the meaning of Article 85(15) of the Magistrates’ Courts (Northern Ireland) Order 1981[^f00141].

(4) Where a recovery order requires the partner to make payments to the Department, the Department may, by giving notice in writing to the court which made the order, the liable person and the claimant, transfer to the claimant the right to receive payments under the order and to exercise the relevant rights in relation to the order.

(5) In paragraph 4 the “relevant rights” means, in relation to a recovery order, the right to bring any proceedings, take any steps or do any other thing under or in relation to the order.

CHAPTER 2 — Work or training beneficiaries

Work or training beneficiaries

148

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Linking rules – limited capability for work

149

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

150

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

CHAPTER 3 — Temporary absence from Northern Ireland

Absence from Northern Ireland

151

(1) A claimant who is entitled to an employment and support allowance is to continue to be so entitled during a period of temporary absence from Northern Ireland only in accordance with this Chapter.

(1A) Where a claimant is temporarily absent from Northern Ireland, except where the circumstances in regulation 154 or 155 apply, the total period of temporary absence where the claimant is treated as present in Northern Ireland will not exceed 26 weeks.

(2) A claimant who continues to be entitled to a contributory allowance during a period of temporary absence shall not be disqualified for receiving that allowance during that period under section 18(4) of the Act.

Short absence

152

A claimant is to continue to be entitled to an employment and support allowance during the first 4 weeks of a temporary absence from Northern Ireland if—

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

(b) while absent from Northern Ireland, the claimant continues to satisfy the other conditions of entitlement to that employment and support allowance.

Absence to receive medical treatment

153

(1) A claimant is to continue to be entitled to an employment and support allowance during the first 26 weeks of a temporary absence from Northern Ireland if—

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

(b) while absent from Northern Ireland, the claimant continues to satisfy the other conditions of entitlement to that employment and support allowance;

(i) in connection with arrangements made for the treatment of the claimant for a disease or bodily or mental disablement directly related to the claimant’s limited capability for work which commenced before leaving Northern Ireland, or

(ii) because the claimant is accompanying a dependent child in connection with arrangements made for the treatment of that child for a disease or bodily or mental disablement;

(d) those arrangements relate to treatment—

(i) outside Northern Ireland,

(ii) during the period whilst the claimant is temporarily absent from Northern Ireland, and

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

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

(2) In paragraph (1)(d)(iii) “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.

Absence in order to receive health service treatment

154

A claimant is to continue to be entitled to an employment and support allowance during any period of temporary absence from Northern Ireland if—

(a) while absent from Northern Ireland, the claimant continues to satisfy the other conditions of entitlement to that employment and support allowance;

(b) that period of temporary absence is for the purpose of the claimant receiving treatment at a hospital or other institution outside Northern Ireland where the treatment is being provided—

(i) under Article 5, 7 or 8 of the Health and Personal Social Services Order[^f00142] (provision of accommodation and medical services, etc.; prevention of illness, care and after-care; care of mothers and young children),

(ii) pursuant to arrangements made under Article 14A of that Order[^f00143] (arrangements for provision of health services by other bodies or persons), or

(iii) pursuant to arrangements made under paragraph 13 of Schedule 3 to the Health and Personal Social Services (Northern Ireland) Order 1991[^f00144] (Health and Social Services trusts: specific powers); ...

Absence of member of family of member of Her Majesty’s forces

155

(1) A claimant is to continue to be entitled to an employment and support allowance during any period of temporary absence from Northern Ireland if—

(a) the claimant is a member of the family of a member of Her Majesty’s forces and temporarily absent from Northern Ireland by reason only of the fact that the claimant is living with that member; ...

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

(2) In this regulation “member of the family of a member of Her Majesty’s forces” means the spouse, civil partner, son, daughter, step-son, step-daughter, father, father-in-law, step-father, mother, mother-in-law or step-mother of such a member.

CHAPTER 4 — Membership of household

Circumstances in which a person is to be treated as being or not being a member of the household

156

(1) Subject to the following provisions of this regulation—

(a) the claimant and the claimant’s partner; and

(b) where the claimant or the claimant’s partner is responsible for a child or young person, that child or young person and any child of that child or young person,

are to be treated as being members of the same household.

(2) Paragraph (1) applies even where any of them is temporarily living away from the other members of the family.

(3) Paragraph (1) does not apply to a person who is living away from the other members of the family where—

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

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

(4) Paragraph (1) does 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 accommodation provided under Article 110 of the Mental Health Order;

(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 (Northern Ireland) 1953[^f00145];

(c) the claimant is abroad and does not satisfy the conditions of Chapter 3 (temporary absence from Northern Ireland); or

(d) any one of them is permanently residing in a residential care home, a nursing home, an Abbeyfield Home or an independent hospital.

(5) A child or young person is not to be treated as a member of the claimant’s household where that child or young person is—

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