LEGISLATION

Income Support is covered by Articles 122-126, 130-133 of the Social Security Contributions and Benefits (NI) Act 1992. Regulations are contained in the Income Support (General) Regulations (NI) 1987 as amended, and the Income Support (General) (Jobseeker’s Allowance Consequential Amendments) Regulations (NI) 1996.

INTRODUCTION

Income Support is the means-tested benefit for certain groups of people who are not in full time work. A person not in full time work and not required to sign on for work, whose income and capital fall below a certain level, and who falls into one of the prescribed categories is entitled to have her/his income topped up by Income Support. An unemployed person who signs on as available for and actively seeking work will claim Jobseeker’s Allowance (JSA) topped up by Income-based Jobseeker’s Allowance (JSA(IB)) if necessary.

Child Tax Credit (CTC), introduced on 6 April 2003, and Pension Credit (PC), introduced on 6 October 2003, replaced Income Support for certain groups.  CTC replaced help for children in Income Support. PC replaced Income Support for pensioners.  From 6 April 2004, Income Support became an adult only benefit. Those affected have transitional protection.

For further information on transitional arrangements see section 12.

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1. GENERAL CONDITIONS OF ENTITLEMENT

To qualify for Income Support, a person must satisfy all of the conditions outlined below.

1.1 Must be aged at least sixteen and under 60

A person aged at least sixteen and under 60 who falls within one of the prescribed categories is entitled to claim Income Support.  However, sixteen and seventeen year olds are subject to special rules and are paid at special rates. A payment can also be made to a sixteen or seventeen year old where this will prevent severe hardship.

Young people aged under sixteen can never claim Income Support for themselves.

A person aged 60 or over is no longer able to claim Income Support and should claim PC instead.

1.2 Must not have capital over £16,000

Income Support is not payable to a person if s/he and/or partner have capital over £16,000. Those who are permanently in residential care, nursing homes or other types of residential accommodation also lose entitlement if they have over £16,000 in savings and/or capital. The legislation sets out what counts as capital and what can be ignored.

Personal possessions (other than those which would be considered an investment, eg an art collection) and the person's home will not normally be included as savings or capital. Any payment made to a person as the holder of a Victoria or George Cross medal will also be ignored. The surrender value of any insurance policies and certain other savings can be ignored in specific circumstances. For the full list of what is ignored as capital, see Schedule 10 of the Income Support (General) Regulations (NI) 1987 as amended.

A person will still be treated as possessing capital where s/he has deprived her/himself of this capital in order to secure or increase entitlement to Income Support.

1.3 Must not be in full-time employment

A person will not be entitled to Income Support if s/he is working sixteen hours or more per week or her/his partner (if s/he has one) is working 24 hours or more per week. Exceptions to this rule include childminders working in their own home, people with a disability whose earning capacity is reduced by 25% or more compared to able-bodied persons, people engaged in special occupations (eg a part-time member of the fire brigade, an auxiliary coastguard, person engaged in launching or manning a lifeboat) and voluntary work and people who are temporarily absent from work in certain circumstances (eg sickness, maternity or paternity or adoption leave). Further, a person who takes up full-time employment may be able to get mortgage interest run on for up to four weeks (see 5.1.3).  

1.4 Must not be in full-time education

Income Support will not normally be payable to a person in full-time education. Exceptions to this include people who do not have to be available for work, for example, a lone parent claiming for a child under sixteen or a person with a disability.  Whether or not a course amounts to full-time education is a complicated matter. In relation to people under nineteen at the start of the course and those aged nineteen on or after 10 April 2006 but under 20 whose course started before turning nineteen, it will normally depend on the number of hours per week. Also, people under nineteen in approved unwaged training not subject to a contract of employment (ie arrangements made by The Department for Employment and Learning (DEL) in relation to access and Jobskills traineeships), or those aged nineteen on or after 10 April 2006 but under 20 whose approved unwaged training started before reaching nineteen also count as being in full-time relevant education. For those aged nineteen or over at the start of the course and who do not count as qualifying young persons (see 5.1), it will normally depend on whether or not the college designates the course as full-time. If dealing with students and entitlement, consult Students and Benefits Booklet [produced by the Adult Learner Finance Project in association with Law Centre (NI)] or contact Law Centre (NI).

1.5 Must satisfy the habitual residence test

A person must be habitually resident and have the right to reside in the United Kingdom (UK), Republic of Ireland, Channel Islands or Isle of Man to qualify for Income Support. The test applies to all people claiming (but not partners or dependants) including British/Irish citizens returning from abroad to Northern Ireland. Some groups are automatically treated as habitually resident, including people who are treated as workers within specific pieces of European legislation and who are also citizens of the European Economic Area (ie Austria, Belgium, Denmark, Finland, France, Germany, Greece, Italy, Iceland, Luxembourg, Netherlands, Norway, Portugal, Republic of Ireland, Spain, Sweden, and UK) and their dependants, refugees and people who have been granted new forms of leave outside of the immigration rules – humanitarian protection and discretionary leave. On 1 May 2004, the European Union expanded to include Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia. In response to this, the habitual residence test was amended so that no person will be treated as habitually resident unless s/he has a right to reside in the UK, Republic of Ireland, Channel Isles or Isle of Man. This may affect access to Income Support.

From 30 April 2006, legislation provides for a new right to reside for all EC nationals and family members for the first three months of their stay in the UK, provided they hold a valid identity card or passport.  EC nationals, including A8 nationals, who reside solely on the basis of this right (or equivalent Home Office legislation) will not pass the right to reside part of the habitual residence test.

On 1 January 2007 Bulgaria and Romania joined the EU and new rules provide that no national of these countries will be treated as habitually resident unless s/he is subject to the worker authorisation scheme and is treated as a worker under the legislation which governs this scheme.

If a person is turned down for Income Support because of the habitual residence test, contact Law Centre (NI).

1.6 Must not be a person subject to immigration control 

A person will be a ‘person subject to immigration control’ if s/he is not an EEA national and:

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2. WHO CAN CLAIM?

Income Support may only be claimed if any one of the categories listed below apply. If a category applies for at least one day in a benefit week, it is normally deemed to apply for the whole of the benefit week.

2.1 Childcare responsibilities

2.2  Caring

Note: If a person no longer satisfies the above conditions or stops acting as a carer, s/he can continue to claim Income Support for eight weeks.

2.3 Pregnancy

2.4 Sickness and disability

Note: A person claiming JSA can, in some circumstances, opt to continue to claim that benefit during short periods of sickness. S/he can be treated as capable of work for up to two weeks if s/he is unable to work as a result of a disease or disability. This means that when a person is only likely to be sick for a short time, s/he will not necessarily have to claim Income Support.

2.5 Education and training

2.6 Others

Note: In addition, a person who has been accepted as a refugee can claim Income Support backdated to the start of the claim for asylum. The claim for Income Support must be made within 28 days of notification being given that refugee status has been granted. The level of payment depends on the date when the claim was first made.

On 22 July 2004, the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 was passed which, when in effect, will remove the right of those granted refugee status to claim back payments of Income Support and certain other benefits. The current system of back payments of these benefits will be replaced by a discretionary loan system. The legislation provides for back payments to cease for all those recorded as refugees after a specified date, irrespective of when a person made her/his claim for asylum. Government had also announced that, after the consultation period which ended in October 2004, the loan system would be piloted as part of a new refugee programme prior to national roll-out.  On 30 June 2006, that part of the Act which introduces and sets up the broad framework of the new loan system was brought into effect. This enables those with leave to enter or remain and who have been recognised as refugees to have access to integration loans, allows for eligibility to these loans to be extended to other categories of migrant persons and enables the Secretary of State to introduce consequential legislation setting out the full details of the loan scheme. It is expected that this will happen in the end of 2007 alongside the abolition of backdating.

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3. WORK-FOCUSED INTERVIEWS

3.1 Lone parents

Compulsory work-focused interviews have been introduced for lone parents who are making a claim for or currently receiving Income Support. These rules do not apply to lone parents aged under eighteen or over 60.

The lone parent scheme applies to lone parents who claimed Income Support before 30 June 2003 and to lone parents who claim Income Support at offices not yet converted to Jobs and Benefits offices (ie those not covered by the main work-focused interview scheme, see 3.2).

A lone parent making an initial claim for Income Support will be required to attend a work-focused interview if responsible for a child living in her/his household. The interview is compulsory and benefit will not be paid if the person, without good cause, does not attend. S/he will have to reapply for benefit and attend an interview before benefit will be paid.

Where a lone parent remains on Income Support, further interviews will take place every six months. This requirement applies to both the lone parent scheme and the main work focused interviews scheme outlined in 3.2, and began on 30 April 2007 for lone parents with a youngest child aged five or above and on 28 April 2008 for lone parents with a youngest child aged under five. Failure to comply, without good cause, will result in a benefit sanction of £11.83 per week which will continue until the person complies or reaches the age of 60.

Lone parents who have been in receipt of Income Support for at least twelve months and who are responsible for a youngest child aged fourteen or fifteen are required to take part in a work-focused interview every thirteen weeks, and failure to comply, without good cause, will also result in a benefit sanction of £11.83 per week until the person complies or reaches the age of 60. This does not apply to lone parents who are claiming Income Support on the grounds of incapacity or who are appealing against a decision that they are capable of work.

Lone parents are required to prepare and update a work action plan as part of the work-focused interview.

An interview can be waived or deferred if it is considered that it would be inappropriate or of no assistance.

3.1.1 Good cause

A person must show good cause within five working days of the date on which the interview was to take place or one month if new facts become evident and these facts show good cause for not attending.

In deciding if good cause is applicable, the decision maker must take into account:

3.2 Others

The government has introduced additional schemes which make entitlement to certain benefits conditional on attendance at work-focused interviews. The initial interview must take place as soon as reasonably practicable. However, the first work-focused interview for people claiming Income Support on the grounds of incapacity or because appealing a decision on capacity for work is rescheduled to eight weeks after the claim is made.

One such scheme has been administered by Jobs and Benefits Offices since 30 June 2003 and is now the main work-focused interview scheme.  This scheme requires a person claiming Income Support at one of these offices who is at least sixteen years old and under 60 to attend a work-focused interview with a personal adviser as a condition of receiving Income Support.  Where a person has made a fresh claim for Income Support and fails to attend without good cause, s/he will be treated as having made no claim.  Where a person already in receipt of Income Support fails to attend an interview without good cause, her/his benefit will be reduced by £11.83 weekly until s/he takes part in an interview.

This scheme includes the partner of a person claiming. A partner is required to attend a work-focused interview as a condition of the person claiming receiving the full amount of Income Support where:

A partner who her/himself is claiming one of the following benefits is exempt:

If a partner fails to attend without good cause, the person claiming will have her/his benefit reduced by £11.49 weekly.

Another scheme, the Pathways to Work scheme, is currently being piloted in certain areas in Northern Ireland. The government intends that it will be rolled out nationally by 2008. This scheme applies to a person claiming Income Support on the basis of incapacity for work or because s/he is appealing a decision that s/he is not incapable of work.

A person making a new claim for Income Support because of incapacity who is at least eighteen and under 60 is required to:

Similar requirements apply to a person with an existing claim, except that s/he is required to attend a sequence of two further work-focused interviews at monthly intervals instead of a sequence of five further interviews.

In addition, a person may be required to take part in additional interviews at given points during the period of an award. Failure to attend an interview without good cause will result in a benefit sanction of £11.83 weekly. The requirement to attend an interview may be waived or deferred if it is deemed that an interview would not be of assistance or appropriate to the person.

A person making a new claim is not required to take part in the sequence of five monthly interviews if s/he is exempt from the personal capability assessment because of a severe condition (see Law Centre (NI) Encyclopedia of Rights, section A.4 Incapacity Benefit, 1.4.2, categories 3 to 10). A person with an existing claim is not required to take part in the initial interview as well as the sequence of two monthly interviews if s/he is similarly exempt from the personal capability assessment.

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4. WHO CAN A PERSON CLAIM FOR?

From 6 April 2004, a person making a new claim for Income Support can only claim for her/himself and partner. S/he cannot claim for dependent children and/or qualifying young people. Instead s/he must claim CTC. A person with an existing claim will have transitional protection.  See section 12 for details.

A person can claim for a partner if they are married, have formed a civil partnership or are living together as husband and wife or as if they were civil partners. Since the Civil Partnership Act was introduced on 5 December 2005, same sex couples who make a claim for Income Support have their claims assessed in the same way as heterosexual couples.

If a dispute arises as to whether two people are living together as husband and wife or as if they were civil partners, then case law suggests the whole relationship should be looked at and a number of particular factors considered. These include whether two people live in the same household, the financial arrangements, whether there is a sexual relationship, whether there are any children of the relationship and how the two people appear in public.

If a couple separates permanently, then separate claims can be lodged. A temporary absence will not affect status as a couple, where the intention is to resume living together within 52 weeks (or not substantially longer than this in specific circumstances).

A couple no longer counts as a couple in certain circumstances.  These include people living separately because one partner is in custody or a compulsory patient detained under mental health provisions, or in residential care on a permanent basis. For a full set of the circumstances, see Regulation 16 of the Income Support (General) Regulations (NI) 1987 as amended.

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5. HOW MUCH?

The amount of Income Support payable is calculated by subtracting a person's resources (ie income) from her/his needs (ie the weekly amount the person claiming and her/his partner are considered to need, weekly, to live on).

5.1 Needs

In calculating a person's needs, three elements are taken into account:

5.1.1 Personal allowances

Personal allowances are fixed amounts which cover basic weekly living expenses including food, fuel, clothing, laundry, etc. The amount paid depends on age and whether single, a lone parent or one of a couple. Personal allowances for children and qualifying young people have ceased to exist in Income Support for new claims from April 2004. See section 12 for transitional arrangements for claims existing prior to April 2004.

* Single people and lone parents aged sixteen and seventeen living away from home due to specific circumstances or receiving a disability premium are entitled to £46.85 rather than £35.65. This higher rate can also be paid in a number of other limited circumstances.

A child is anyone under sixteen. A qualifying young person is a person aged sixteen and over and under nineteen in full-time, non advanced education or approved unwaged training, or a person aged sixteen and over and under 20 in full-time non advanced education or approved training started before turning nineteen and who reached the age of nineteen on or after 10 April 2006, or a person aged sixteen and over and under 20 who is enrolled on a further course of full-time non advanced education after having completed a similar type course (but only if the course is not provided as a result of her/his job or office held).

5.1.2 Premiums

Premiums are paid on top of personal allowances in recognition of extra expenses due to caring responsibilities, age and disability.  Premiums relating to children have ceased to exist in Income Support for new claims from April 2004. See section 12 for transitional arrangements for existing claims prior to April 2004.

This premium is paid where the person claiming or partner is in receipt of Carer’s Allowance (CA), or is entitled to and would be in receipt of CA but for the fact that another benefit (eg Incapacity Benefit) is in payment which overlaps with CA. An extra statutory payment to compensate a person or partner for not getting CA also counts.

If a person stops getting or being treated as getting CA, or the person whom s/he is getting CA for dies, entitlement to the carer premium continues for a further eight weeks.

Amount paid

single person                                                £27.15

couple one of whom gets or would get CA      £27.15

couple both of whom get or would get CA      £54.30

This premium is paid where a person or any adult member of her/his family who is under 60 is in receipt of the high rate care component of DLA.

Amount paid

single adult    £12.30

couple          £17.75

The circumstances in which the severe disability premium is paid are as follows:

Amount paid 

single person                £48.45

couple (lower rate)       £48.45

couple (higher rate)      £96.90

Note: A person claiming who is in receipt of one of the required benefits and has a partner who is registered blind or is treated as blind because s/he came off the register in the last 28 weeks is treated as having no partner and therefore as a single person.

The following people do not count as non-dependants:

For any of the three categories above, a close relative can also be disregarded as a dependant where:

1. the joint ownership or liability began before 11 April 1988; or

2. the joint ownership or liability began on or before the date the person first lived in the house; or

3. the person had the severe disability premium included in her/his Income Support before 21 October 1991.

Note: The following three premiums are called client group premiums.

A person will be awarded only one client group premium, whichever one is the highest.