DMG Memo Vol 1/97, 3/85, 4/112, 5/88, 6/74, 7/39, 8/41, 9/21, 13/49 & 14/48

APRIL 2012 MISCELLANEOUS AMENDMENTS

ContentsParagraphs

Introduction1

Paternity leave and paternity pay2

Ordinary paternity leave3

Additional paternity leave4

Paternity leave5

Income6 - 7

Treatment of ordinary and

additional paternity pay8

Remunerative work: Income Support

and Jobseeker’s Allowance9

Remunerative work: income-related

Employment and Support Allowance10

Availability: Jobseeker’s Allowance11

The remunerative work rule for

non-dependant housing cost deductions:

income-related Employment and

Support Allowance12

Housing costs – meaning of remunerative work:

State Pension Credit13

Prescribed categories of person:

Income Support14

Young person living away from home and cannot

be supported by parents: Income Support15

Prescribed categories of person: Income Support

Second chance learning16 - 17

Relaxation of the first contribution condition:

contribution-based Employment and

Support Allowance18

Work-related activity and education: income-related
Employment and Support Allowance19

Incapacity Benefit reassessment: Repeat claims

for contribution-based Employment and

Support Allowance20

Simple payments21- 25

Recovery of overpayments by direct credit transfer26

Winter fuel payments

Persons not entitled to a winter fuel payment27

Deadline date for new claims28

Effective date of supersession:

Jobseeker’s Allowance29

Annotations

Contacts

INTRODUCTION

1.This memo provides guidance to decision makers on the changes made to social security legislation by the Social Security (Miscellaneous Amendments) Regulations (NI) 2012 (S.R. 2012 / 121). The changes take effect

  1. on 1.5.121 for paragraphs 18 and 20 and
  1. on 1.4.122 for every other paragraph.

1 Social Security (Miscellaneous Amendments) Regulations (NI) 2012, reg 1(3); 2 reg 1(4)

PATERNITY LEAVE AND PATERNITY PAY

2.Since April 2011, fathers satisfying certain conditions have been able to claim up to 26 weeks Additional Paternity Leave and Additional Statutory Paternity Pay.

Ordinary paternity leave

3.DMG 26575 for Income Support and Jobseeker’s Allowance and DMG 49596 for Employment and Support Allowance provides guidance on the meaning of paternity leave. This is now known as “ordinary paternity leave”1.

1 JSA Regs (NI), reg 1(2); IS (Gen) Regs (NI), reg 2(1); ESA Regs (NI), reg 2(1)

Additional paternity leave

4.Additional paternity leave for Jobseeker’s Allowance, Income Support and Employment and Support Allowance means1 a period of absence from work on leave following the birth or adoption of a child under relevant legislation2. The period of absence cannot exceed 26 weeks.

1 JSA Regs (NI), reg 1(2); IS (Gen) Regs (NI), reg 2(1); ESA Regs (NI), reg 2(1);
2 ER (NI) Order 1996, art 112A & 112B

Paternity leave

5.For State Pension Credit, paternity leave means1 a period of absence from work on leave on

  1. ordinary paternity leave or
  1. additional paternity leave

under relevant legislation2.

1 SPC Regs (NI), reg 1(2); 2 ER (NI) Order 1996, art 112A, 112B, 112AA & 112BB

Income

6.Payments made for periods when an employee is on ordinary paternity leave or additional paternity leave do not count as earnings for Income Support, Jobseeker’s Allowance or Employment and Support Allowance1. The payments are income other than earnings.

1 JSA Regs (NI), reg 98(2)(c); IS (Gen) Regs (NI), reg 35(2)(b); ESA Regs (NI), reg 95(2)(b)

7.For State Pension Credit, payments of

  1. ordinary statutory paternity pay and
  1. additional statutory paternity pay

are included as earnings1. The payments do not count as benefit income2.

1 SPC Regs (NI), reg 17A(2)(i) & (ia); 2 reg 15(1)(p) & (pa)

Treatment of ordinary and additional paternity pay

8.For Jobseeker’s Allowance, Income Support and income-related Employment and Support Allowance the amount of ordinary and additional paternity pay that the decision maker should take into account is the gross amount less

  1. any income tax paid1and
  1. any amount deducted by way of primary class 1 contributions2and
  1. one half of any contribution paid by the claimant to an occupational or personal pension scheme3.

1 JSA Regs (NI), Sch 7, para 1; IS (Gen) Regs (NI), Sch 9, para 4;ESA Regs (NI), Sch 8, para 1;
2 JSA Regs (NI), Sch 7, para 4(a) & 5(a);IS (Gen) Regs (NI), Sch 9, para 4(a) & 4A(a); ESA Regs (NI), Sch 8, para 4(a) & 5(a);
3 JSA Regs (NI), Sch 7, para 4(b) & 5(b);IS (Gen) Regs (NI), Sch 9, para 4(b) & 4A(b); ESA Regs (NI), Sch 8, para 4(b) & 5(b)

Remunerative work: Income Support and Jobseeker’s Allowance

9.DMG 20308 provides guidance on where a person is absent from work in certain circumstances and is therefore treated as not being in remunerative work for those periods. From 1.4.12, the category of paternity leave is changed to ordinary paternity leave and additional paternity leave as per the definitions1 in paragraphs 3 and 4 of this memo.

1 Employment Rights (NI) Order 1996, art 112A, 112B, 112AA & 112BB;
JSA Regs (NI), reg 52(1); IS (Gen) Regs (NI), reg 5(3A)

Remunerative work: income-related Employment and Support Allowance

10.Where an Employment and Support Allowance claimant’s partner is absent from remunerative work, they are normally treated as engaged in remunerative work1 (see DMG 41441). However, where they are on paternity leave, they are not treated as in remunerative work2 (see DMG 41383). From 1.4.12, paternity leave is defined3 as ordinary4 or additional5 paternity leave.

1 ESA Regs (NI), reg 42(3); 2 reg 43(3); 3 reg 2(1);
4 ER (NI) Order 1996, art 112A or 113B; 5 art 112AA or 112BB

Availability: Jobseeker’s Allowance

11.DMG 21255 provides guidance on when a person is to be regarded as not available for employment for the purposes of Jobseeker’s Allowance. A person on

1.ordinarypaternity leave or

2.additional paternity leave

is regarded as not available1.

1 JSA Regs (NI), reg 15(1)(bc)

The remunerative work rule for non-dependant housing cost deductions: income-related Employment and Support Allowance

12.A non-dependant is treated as not being in remunerative work on any day on which they are on

  1. ordinary paternity leave or
  1. additional paternity leave1.

1 ESA Regs (NI), Sch 6, para 2(5)

Housing costs - meaning of remunerative work: State Pension Credit

13.A person is treated as not being in remunerative work on any day on which they are on

  1. ordinary paternity leave or
  1. additional paternity leave1.

1 SPC Regs (NI), Sch II, para 2(7)

Prescribed categories of person: Income Support

14.The prescribed category relating to paternity leave1 as per DMG 20164 has been amended from 1.4.12 so that to qualify for Income Support under this category a person has to be entitled to and taking ordinary paternity leave as per the definition2 in paragraph 3. The category also requires that the person is not entitled to statutory paternity pay. This is also amended from the same date to ordinary statutory paternity pay3.

1 Employment Rights (NI) Order 1996, art 112A & 112B; IS (Gen) Regs (NI), Sch 1B, para 14B;

2 reg 2(1); 3 Sch 1B, para 14B(2)(a)

YOUNG PERSON LIVING AWAY FROM HOME AND CANNOT BE SUPPORTED BY PARENTS: INCOME SUPPORT

15.DMG 20702 provides guidance on young people who are living away from home and cannot be supported by their parents. One of the criteria is that the parents are chronically sick or mentally disabled. The definition of chronically sick or mentally disabled has been amended to include where the parent is entitled to Employment and Support Allowance including a work-related activity component or support component1.

1 IS (Gen) Regs (NI), reg 13(3)(b)(iv)

PRESCRIBED CATEGORIES OF PERSON: INCOME SUPPORT

Second chance learning

16.The prescribed category relating to persons under 21 in non-advanced full-time education with no parents has been amended. To be able to satisfy this category1

  1. the person has enrolled on or been accepted for or is undertaking a course of full-time non-advanced education and
  1. the person

2.1is under 21 or

2.2is 21 and became that age while they were undertaking a course of full-time non-advanced education and

  1. the person

3.1has no parent or any person acting in place of a parent or

3.2has to live away from their parent and any person acting in place of a parent because

3.2.athey are estranged from their parents and any person acting in place of a parent or

3.2.bthey are in physical or moral danger or

3.2.cthere is a serious risk to their physical or mental health or

3.3is living away from their parents and any person acting in place of their parents where their parents or any person acting in place of their parents are unable financially to support them and are

3.3.achronically sick or mentally or physically disabled or

3.3.bdetained in custody pending trial or sentence upon conviction or under a sentence imposed by a court or

3.3.cprohibited from entering or re-entering NI.

1 IS (Gen) Regs (NI), Sch 1B, para 15A (1) – (4)

17.For the purposes of second chance learning, the meaning of “course of full-time, non-advanced education”1 means a course of full time education which is not advanced2 and which is not provided as a result of the persons employment or any office held and which is provided

  1. at a school or college or
  1. elsewhere but is approved by the Department as being such a course.

1 IS (Gen) Regs (NI), Sch 1B, para 15A (6); 2 reg 61(1)

RELAXATION OF THE FIRST CONTRIBUTION CONDITION: CONTRIBUTION-BASED EMPLOYMENT AND SUPPORT ALLOWANCE

18.DMG 41032 3.4 provides guidance on treating the first contribution condition1 as satisfied where the claimant had received contribution-based Employment and Support Allowance in the last tax year immediately before the relevant benefit year in which a further claim for contribution-based Employment and Support Allowance is made2. From 1.4.12 this provision is revoked3.

1 WR Act (NI) 07, Sch 1 para 1(4)(b); 2 ESA Regs (NI), reg 8(2)(d); 3 Social Security (Miscellaneous Amendments) Regulations (NI) 2012, reg 18(2)(c)

WORK–RELATED ACTIVITY AND EDUCATION: INCOME-RELATED EMPLOYMENT AND SUPPORT ALLOWANCE

19.Normally a claimant is not entitled to income-related Employment and Support if they are in full–time education1. See DMG 41556 et seq for guidance on when a claimant is in education. From 1.4.12, the guidance does not apply where the claimant is required to attend a course of study as part of a requirement to undertake work-related activity2. For example, a claimant who is required to attend a training course of more than 16 hours a week as part of their work-related activity is not treated as being in full–time education. See DMG 53031 et seq for guidance on work-related activity.

1 WR Act (NI) 07, Sch 1 para 6(1)(g);2 ESA Regs (NI), reg 14(2A)

INCAPACITY BENEFIT REASSESSMENT: REPEAT CLAIM FOR CONTRIBUTION-BASED EMPLOYMENT AND SUPPORT ALLOWANCE

20.DMG 45676 gives guidance on modification of the contribution conditions where an award of Incapacity Benefit or Severe Disablement Allowance is converted to an award of contribution-based Employment and Support Allowance1. Where

  1. an award of contribution-based Employment and Support Allowance made on conversion from Incapacity Benefit or Severe Disablement Allowance is terminated and
  1. a further claim for Employment and Support Allowance is made and
  1. the claimant has, or is treated as having, limited capability for work within the 12 or 104 week linking period2 (see DMG 41111 et seq)

the contribution conditions do not apply3. Decision makers are reminded that, where an award is ended after application of the work capability assessment, or because the claimant failed to return the questionnaire or failed to attend an examination, on a further claim made within six months the claimant cannot be treated as having limited capability for work pending assessment4 (see DMG 42203).

1 WR Act (NI) 07, Sch 1, paras 1 – 5; ESA (TP & HB)(EA) Regs (NI), Sch 2;
2 ESA Regs (NI), reg 145(1)&(2);
3 ESA (TP & HB)(EA) Regs (NI), reg 16(1A);
4 ESA Regs (NI), reg 30(2)(b)

SIMPLE PAYMENTS

21.The “Simple Payment” service is being introduced in July 2012. It is specifically designed for those claimants who, for the purposes of receiving their benefit payments, are unable to make use of mainstream accounts, such as

  1. a bank, building society or credit union account or
  1. a Post Office card account.

22.As payments under the “Simple Payment” service are based on an electronic transfer of funds, the Department considers that this constitutes payment of benefit by direct credit transfer – see DMG 8006.

23.DMG 8007 gives guidance on the arrangements for paying benefit by direct credit transfer including the requirement for this to be done by arrangement between the Department and the claimant or their representative1.

1 SS (C&P Regs)(NI), reg 21(1)

24.However, it is not necessary to have a prior arrangement between the Department and the claimant or their representative, where benefit is being paid by means of the “Simple Payment” service.

25.DMG 8012 gives guidance on how an arrangement described in DMG 8007 may be ended1. As a consequence of the introduction of the “Simple Payment” service, this provision is removed with effect from 1.4.12.

1 SS (C & P) Regs (NI), reg 21(5)

RECOVERY OF OVERPAYMENTS BY DIRECT CREDIT TRANSFER

26.DMG 9125 describes the prescribed conditions for recovery of overpayments by direct credit transfer. As a consequence of the “Simple Payment” changes, notice of what would happen, if there was any overpayment, must be given to the claimant or their representative, before the arrangement came into effect

  1. in writing, where the claim was made in writing or
  1. orally or in writing, where the claim was made by telephone.

1 SS (POR) Regs (NI), reg 11(2)(b)

WINTER FUEL PAYMENTS

Persons not entitled to a winter fuel payment

27.DMG 39910 gives guidance on persons not entitled to a Winter Fuel Payment. From 1.4.12 persons will not qualify for a Winter Fuel Payment if the conditions in DMG 39910 are met throughout the qualifying week1.

1 SFWFP Regs (NI), reg 3(1)(a)

Deadline date for new claims

28.All Winter Fuel Payment claim forms must be received on or before the 31st March1 following the qualifying week(see DMG 39916).

1 SFWFP Regs (NI), reg 3(1)(b)

EFFECTIVE DATE OF SUPERSESSION: JOBSEEKER’S ALLOWANCE

29.Where

  1. a claimant or their partner is awarded a benefit which would otherwise give entitlement to a Severe Disability Premium for the purposes of Jobseeker’s Allowance1and
  1. at the date from which the other benefit is awarded, they have a non-dependant living with them2and
  1. the non-dependant leaves the household

the Jobseeker’s Allowance supersession decision awarding Severe Disability Premium is effective from the first day of the benefit week in which the non-dependant leaves the household3.

1 SS CB (NI) Act 92, sec 131(5); 2 JSA Regs (NI), reg 2;
3 SS CS (D&A) Regs (NI), reg 7(7)(b)(i); Sch 2A, paras 12 & 13

ANNOTATIONS

Please annotate the number of this memo (DMG Memo Vol 1/97, 3/85, 4/112, 5/88, 6/74, 7/39, 8/41, 9/21, 13/49 & 14/48) against DMG paragraphs: 04354, 08006, 08007, 08012, 09125, 20164, 20167, 20308, 20390, 20701, 20702, 21255, 26014, 26575, 28212, 28215, 33545, 33604 (heading), 39910, 39916, 41032, 41383, 41556, Chapter 44, Appendix 2, paragraphs 71, 72, 75, 79 and 141, 45676, 49017, 49596, Chapter 49 Appendix 6 para 142, 51132, 51135, Chapter 78, Appendix 5, paragraphs 71, 72, 75, 79, 141 and 142, 79660, 79700 (heading), 85281, 85322, 86033.

CONTACTS

If you have any queries about this memo please contact:

Decision Making Services

Sections 1, 2 and 3

Level 1

James House

Gasworks Business Park

Belfast

Extensions: 37188, 37193 and 37208.

DECISION MAKING SERVICESDistribution:All Holders of DMG Volumes 1, 3, 4, 5, 6, 7, 8, 9, 13 & 14

April 2012