The Social Security (Overlapping Benefits) Regulations 1979

Made: 29th May 1979

Laid before Parliament: 6th June 1979

Coming into Operation: 29th June 1979

The Secretary of State for Social Services, in exercise of powers conferred by sections 83(1) and 85 of the Social Security Act 1975 and of all other powers enabling him in that behalf hereby makes the following regulations which only consolidate the regulations herein revoked and which accordingly by virtue of paragraph 20 of Schedule 15 to the Social Security Act 1975, are not subject to the requirement of section 139(1) of that Act for prior reference to the National Insurance Advisory Committee:—

Citation and commencement

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These regulations may be cited as the Social Security (Overlapping Benefits) Regulations 1979 and shall come into operation on 29th June 1979.

Interpretation

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• (1) In these regulations, unless the context otherwise requires—

• “the 2012 Act” means the Welfare Reform Act 2012;

• “the Act” means the Social Security Act 1975;

• “the Contributions and Benefits Act” means the Social Security Contributions and Benefits Act 1992;

• “the Pensions Act” means the Social Security Pensions Act 1975;

• armed forces independence payment” means a payment under Article 24A of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011

• “benefit under Chapters I and II of Part II of the Act” includes benefit treated as included in Chapter I of Part II of the Act by virtue of section 66(2)(b) of the Pensions Act;

• ...

• “the Child Benefit Act” means the Child Benefit Act 1975;

• “child benefit” means benefit under Part I of the Child Benefit Act;

• “contribution-based jobseeker’s allowance” means an allowance under the Jobseekers Act as amended by the provisions of Part 1 of Schedule 14 to the 2012 Act that remove references to an income-based allowance, and a contribution-based allowance under the Jobseekers Act as that Act has effect apart from those provisions;

• “contributory benefit" means any benefit payable under Part II of the Contributions and Benefits Act, a contribution-based jobseeker's allowance and a contributory employment and support allowance;

• “contributory employment and support allowance” means an allowance under Part 1 of the Welfare Reform Act as amended by the provisions of Schedule 3, and Part 1 of Schedule 14, to the 2012 Act that remove references to an income-related allowance, and a contributory allowance under Part 1 of the Welfare Reform Act as that Part has effect apart from those provisions;

• “the daily living component of personal independence payment” means a payment in accordance with section 78 of the 2012 Act;

• “death benefit” means any benefit, pension or allowance which, apart from these regulations, is payable (whether under the Act or otherwise) in respect of the death of any person;

• “the deceased” means, in relation to any death benefit, the person in respect of whose death that benefit, apart from these regulations, is payable;

• “dependency benefit” means that benefit, pension or allowance which, apart from these regulations, is payable (whether under the Act or otherwise) to a person in respect of another person who is a child or an adult dependant; it includes child's special allowance and any personal benefit by way of pension payable to a child under any Personal Injuries Scheme, Service Pensions Instrument or 1914-1918 War Injuries Scheme but does not include benefit under section 73 of the Act (allowances to a woman who has care of children of person who died as a result of an industrial accident) or child tax credit under the Tax Credits Act 2002;

• “disablement pension” includes a disablement payment on a pension basis and retired pay or pension in respect of any disablement, wound, injury or disease;

• “the enhanced rate” in relation to the daily living component of personal independence payment means the rate prescribed in regulation 24(1)(b) of the Social Security (Personal Independence Payment) Regulations 2013;

• “income-based jobseeker’s allowance” means an income-based allowance under the Jobseekers Act;

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

• “the Jobseekers Act" means the Jobseekers Act 1995;

• “personal benefit” means any benefit, pension or allowance, except a shared additional pension (whether under the Act or otherwise), which is not a dependency benefit or universal credit under Part 1 of the 2012 Act, and includes a contributory employment and support allowance but not an income-related employment and support allowance and includes a contribution-based jobseeker’s allowance but not an income-based jobseeker’s allowance, and which, apart from these regulations, is payable to any person;

• “personal independence payment” means personal independence payment under Part 4 of the 2012 Act;

• “Personal Injuries Scheme” means any scheme made under the Personal Injuries (Emergency Provisions) Act 1939 or under the Pensions (Navy, Army, Air Force and Mercantile Marine) Act 1939;

• “Pneumoconiosis and Byssinosis Benefit Scheme” means any scheme made under section 5 of the Industrial Injuries and Diseases (Old Cases) Act 1975;

• “Service Pensions Instrument” means any instrument described in sub-paragraphs (a) or (b) below in so far, but only in so far, as the pensions or other benefits provided by that instrument are not calculated or determined by reference to length of service, namely:— any instrument made in exercise of powers—referred to in section 12(1) of the Social Security (Miscellaneous Provisions) Act 1977 (pensions or other benefits for disablement or death due to service in the armed forces of the Crown); orunder section 1 of the Polish Resettlement Act 1947 (pensions and other benefits for disablement or death due to service in certain Polish forces); orany instrument under which a pension or other benefit may be paid to a person (not being a member of the armed forces of the Crown) out of public funds in respect of death or disablement, wound, injury or disease due to service in any nursing service or other auxiliary service of any of the armed forces of the Crown, or in any other organisation established under the control of the Defence Council or formerly established under the control of the Admiralty, the Army Council or the Air Council.

• “shared additional pension” means a shared additional pension under section 55A or 55AA of the Contributions and Benefits Act;

• “training allowance” means an allowance (whether by way of periodical grants or otherwise) payable out of public funds by a Government department or by or on behalf of Scottish Enterprise, Highlands and Islands Enterprise, the ... the Secretary of State, the National Assembly for Wales or the Secretary of State to a person for his maintenance, or in respect of any dependant of his, for the period, or part of the period, during which he is following a course of training or instruction provided by, or in pursuance of arrangements made with, that department or approved by that department in relation to him or so provided or approved by or on behalf of Scottish Enterprise, Highlands and Islands Enterprise, the National Assembly for Wales or the said Commission but it does not include— an allowance paid by any Government department to or in respect of a person by reason of the fact that he is following a course of full-time education or is training as a teacher; ora payment made by or on behalf of Scottish Enterprise, Highlands and Islands Enterprise or the Secretary of State to any person by way of training premium or training bonus in consequence of that person’s use of facilities for training provided in pursuance of arrangements made under section 2 of the Employment and Training Act 1973 or section 2 of the Enterprise and New Towns (Scotland) Act 1990.

• “treatment allowance” means an allowance payable under a Personal Injuries Scheme, Service Pensions Instrument or 1914-1918 War Injuries Scheme only to a person undergoing a course of medical, surgical or rehabilitative treatment in consequence of a disablement in respect of which a pension may be or has been paid, or an allowance payable to any such person pending the determination of the question whether he is entitled to receive such a pension;

• “unemployability supplement” includes an increase on account of unemployability under— any Pneumoconiosis and Byssinosis Benefit Scheme; andany Personal Injuries Scheme, Service Pensions Instrument or 1914-1918 War Injuries Scheme;

• “war pension death benefit” means a death benefit by way of pension or allowance under any Personal Injuries Scheme, Service Pensions Instrument or 1914-1918 War Injuries Scheme, but does not include a rent allowance or a grant payable by reason of the beneficiary being in receipt of a pension and being a specific age which is not less than 65 or a pension or an allowance calculated by reference to the necessities of the beneficiary;

• “1914-1918 War Injuries Scheme” means any scheme made under the Injuries in War (Compensation) Act 1914 or under the Injuries in War Compensation Act 1914 (Session 2) or any Government scheme for compensation in respect of persons injured in any merchant ship or fishing vessel as the result of hostilities during the 1914-1918 War.

• “the Welfare Reform Act” means the Welfare Reform Act 2007.

• “widowed mother’s allowance” means an allowance referred to in section 37 of the Contributions and Benefits Act (widowed mother’s allowance);

• “widowed parent’s allowance” means an allowance referred to in section 39A of the Contributions and Benefits Act;

• “widow’s pension” means a pension referred to in section 38 of the Contributions and Benefits Act (widow’s pension).

• (2) For the purposes of these regulations, unless otherwise specified, additional pension payable by virtue of the Act or the Pensions Act shall be deemed to include any increase so far as attributable to any additional pension or to any increase by virtue of section 126A of the Act or paragraph 4A of Schedule 1 to the Pensions Act or to any increase of graduated retirement benefit and shall be treated as a separate personal benefit included in Chapter I of Part II of the Act.

Special provisions for widow's benefit and invalidity pension

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• (1) This regulation applies where, apart from these regulations, there is payable for the same period to a person under pensionable age both—

• (a) an long-term incapacity benefit; and

• (b) a widowed mother's allowance or widow's pension (hereafter referred to in this regulation as “the widow's benefit”).

• (2) The total amount payable in respect of these benefits under this regulation shall be—

• (a) an amount equal to either the basic rate of long-term incapacity benefit referred to in regulation 18(1)(a) of the Social Security (Incapacity Benefit) (Transitional) Regulations 1995 paid in a transitional case or an award of widow’s basic pension calculated by reference to section 44(1) of the Contributions and Benefits Act or an amount equal to the greater of them

• (b) the sum of the incapacity benefit payable at the additional rate in accordance with regulation 18(1)(b) of the Social Security (Incapacity Benefit) (Transitional) Regulations 1995 and widow’s pension determined in accordance with section 44(3)(b) of the Contributions and Benefits Act up to and not exceeding the maximum for the time being prescribed under section 9(3) of the Pensions Act.

• (3) Subject to paragraph (4)—

• (a) where the beneficiary has made application, before the payment is made, that the total amount payable should be treated as being made up of the rate of the long-term incapacity benefit, any balance being the widow's benefit, it shall be so treated;

• (b) in any other case, that amount shall be treated as being made up of the rate of the widow's benefit, any balance being the long-term incapacity benefit.

• (4) For the purposes of the remainder of these regulations (other than regulation 6(5)), which shall apply after adjustment has been made under this regulation, the total amount payable under this regulation shall be treated as a single long-term benefit payable on a weekly basis.

Adjustment of personal benefit under Chapters I and II of Part II of the Act where other personal benefit under those Chapter is payable

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• (1) Subject to paragraphs (2), (3) and (4) and regulation 12, an adjustment shall be made in accordance with paragraph (5) where either—

• (a) two or more personal benefits (whether of the same or a different description) are, or but for this regulation would be, payable under Parts II and III of the Contributions and Benefits Act (which relate to benefits other than industrial injuries benefits), Part 1 of the Welfare Reform Act, Part 1 of the Pensions Act 2014 or under the Jobseekers Act for any period; or

• (b) graduated retirement benefit is payable under sections 36 and 37 of the National Insurance Act 1965 together with one or more personal benefits (whether of the same or a different description) which are, or but for this regulation would be, payable under Parts II and III of the Contributions and Benefits Act for any period.

• (2) Paragraph (1) shall not require the adjustment of, or by reference to—

• (a) a death grant;

• (b) a maternity grant;

• (c) any other sum paid otherwise than in respect of a period;

• (d) an earnings-related supplement or earnings-related addition to any benefit (except as provided by regulation 5 and in the case of severe disablement allowance or carer’s allowance);

• (e) an attendance allowance;

• (f) additional pension or graduated retirement benefit (except as provided by paragraph (4) and (4A));

• (g) disability living allowance.

• (2A) Paragraph (1) shall not require an adjustment of widow’s pension reduced in accordance with section 39(4) of the Contributions and Benefits Act only by reference to long-term incapacity benefit calculated in accordance with section 40(5)(b) of that Act.

• (3) Paragraph (1) shall require an adjustment of age addition only by reference to another age addition.

• (4) Except where paragraph (4A) applies, where there are payable 2 or more personal benefits to which this regulation applies with which additional pension or graduated retirement benefit is payable as part of the rate of benefit or as an increase of benefit, or, in a case where the person entitled to receive the benefits is over pensionable age and one or more of the benefits includes either additional component or graduated retirement benefit while another of the benefits is payable at the rate referred to in section 14(6) or 15(4) of the Act, then the following provisions shall apply—

• (a) for the purposes of adjustment falling to be made under paragraph (5) that additional pension or graduated retirement benefit shall be treated as part of the personal benefit with which it is so payable;

• (b) the provisions of sub-paragraph (a) shall apply before any further adjustment under these regulations; and

• (c) for the purpose of any such further adjustment, the beneficiary shall be treated as having a single long-term benefit inclusive of whichever before adjustment under sub-paragraph (a) is the highest of the following amounts—

• (i) the highest additional pension payable, or

• (ii) the highest graduated retirement benefit payable, or

• (iii) the highest total of additional pension and graduated retirement benefit payable together as part of the rate of and as an increase of any of those personal benefits.

• (4A) Where the person is entitled to additional pension, a state pension under Part 1 of the Pensions Act 2014 and either widow’s pension or widowed mother’s allowance, paragraph (1) shall require the adjustment of additional pension.

• (5) Where an adjustment falls to be made in accordance with this paragraph and—

• (a) one of the benefits is a contributory benefit and one is a non-contributory benefit, the non-contributory benefit shall be adjusted by deducting from it the amount of the contributory benefit and only the balance, if any, shall be payable.

• (b) sub-paragraph (a) above does not apply, if one of the benefits is payable on a weekly basis—

• (i) where the beneficiary has made application, before the payment is made, to have the benefit payable on a weekly basis adjusted, it shall be adjusted by deducting from it the amount of the other benefit and only the balance of it, if any, shall be payable,

• (ii) in any other case, the benefit not payable on a weekly basis shall be adjusted by deducting from it the amount of the other benefit and only the balance of it, if any, shall be payable;

• (c) sub-paragraphs (a) and (b) above do not apply, the amount payable in respect of the benefits in question shall be an amount equal to that which would but for this provision be payable in respect of—

• (i) one of them, if they would have been payable at the same rate, or

• (ii) the higher or highest of them, if they would have been payable at different rates,

so however that in a case where more than 2 benefits would be payable then the total amount payable shall not exceed the amount which would be ascertained under sub-paragraph (c).

• (6) For the purposes of this regulation—

• “additional pension” means a pension payable with a personal benefit under Part II of the Contributions and Benefits Act or an additional rate; and

• “additional rate” means an additional amount equal to the rate paid or payable as an additional pension with invalidity benefit immediately before 13th April 1995 which is payable after that date pursuant to regulation 18 of the Social Security (Incapacity Benefit) (Transitional) Regulations 1995.

Special provisions for earnings-related supplements and earnings-related addition to widow's allowance

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• (1) Where 2 or more earnings-related supplements to any benefits under the Act would apart from this regulation be payable for the same period, for the purposes of regulation 4(1) each such supplement shall be treated as part of the benefit it supplements.