3.4.b accompanied that member of Her Majesty’s Forces on an assignment outside the United Kingdom or treated as such by the Secretary of State10 or 1 WR Act (NI) 07, Sch 1, para 1(4)(b); ESA Regs (NI), reg 8; 2 reg 8(1)(a); 3 reg 8(1)(b)(i); 4 reg 8(1)(b)(ii); 5 reg 8(2)(a); 6 reg 2(1), Tax Credit Act 2002, Part 1; 7 ESA Regs (NI), reg 8(2)(b); 8 SS (Credits) Regs (NI) 1975, reg 9D; 9 ESA Regs(NI), reg 8(2)(c); 10 reg 8(2)(ca); SS (Credits) Regs (NI), reg 9E; The second contribution condition 41033 The second contribution condition is satisfied1 if 1. in the last 2 complete relevant income tax years before the beginning of the relevant benefit year the claimant has 1.1 paid or been credited with Class 1 or Class 2 National Insurance contributions or been credited with earnings and 2. the earnings factor in each of those years is not less than 50 times the lower earnings limit for those last 2 complete relevant income tax years. 1 WR Act (NI) 07, Sch 1, para 2(1) 41034 For the purposes of DMG 41033 2. the earnings factor is the aggregate of the claimant’s earnings factors derived1 from 1. the amount of earnings which did not exceed the upper earnings limit for the last 2 complete relevant income tax years in DMG 41033 1. on which Class 1 National Insurance contributions have been paid or treated as paid and 2. Class 2 National Insurance contributions. Note : See DMG 41037 for guidance on when earnings exceed the upper earnings limit. 1 WR Act (NI) 07, Sch 1, para 2(2) 41035 The first and second contribution condition 41036 Where 1. Class 1 contributions have been paid or treated as paid in any tax year from 1987/88 and 2. the amount paid, plus any Class 2 or Class 3 National Insurance contributions paid or credited, is not enough to make the year a qualifying year by 2.1 £25.00 or less for the first contribution condition or
1.2.d a general certificate of education (advanced level) 2. “full-time” includes part-time where a claimant’s disability prevents attendance at a full-time course 3. “secondary education” means a course of education below a course of advanced education by attendance at 3.1 an establishment recognised by the Department as or comparable to, a university, college or school or 3.2 another establishment where the Department is satisfied that education is equivalent to that given in an establishment at 3.1. Note 1: Education for this purpose is not the same as its meaning at DMG 41551 et seq. Note 2: There is no specific requirement as to hours. If there is a doubt as to whether or not a course is full time evidence should be obtained from the education authorities. 1 ESA Regs (NI), reg 9(5) Training When considering whether DMG 41050 1.2 is satisfied the decision maker should note that “training” means1 1. training in pursuance of arrangements made under prescribed legislation2 or 2. any training received on a course which a person attends for 16 hours or more a week for the primary purpose of being taught occupational or vocational skills. 1 ESA Regs (NI), reg 2(1); 2 E&T Act (NI) 50, sec 1 or 3 Full-time education condition For the purpose of DMG 41047 2. a claimant is treated as receiving full-time education for any period during which the claimant 1. is aged 16 or over but under 19 and 2. attends a course of education for 21 hours or more a week1. 1 ESA Regs (NI), reg 12(1) In determining the duration of a period of full time education any temporary interruption of that education may be disregarded1. 1 ESA Regs (NI), reg 12(3)
Work done for payment or in expectation of payment Introduction 41326 Whether or not a claimant’s partner is in remunerative work is a question of fact rather than legal interpretation. The decision maker should look at all the relevant facts in each case. Regard work as remunerative if 1. payment is made for it or 2. it is done in expectation of payment1. Remunerative does not mean profitable (see DMG 41330). 1 ESA Regs (NI), reg 42(1); R(IS) 1/93 Work for no monetary reward 41327 A claimant’s partner cannot be in remunerative work if the work done is neither paid nor done in expectation of payment. If the only “payment” is notional earnings1 the work cannot be treated as remunerative. 1 ESA Regs (NI), reg 108(2) Payment in kind 41328 “Payment” includes payment in kind provided it is made in return for work done. It does not matter that the definition of earnings excludes any payment in kind. Expectation of payment 41329 Work “done in expectation of payment” means more than a mere hope that payment will be made at a future date1. There should be a realistic expectation of payment. An established author writing a book in his field has a realistic expectation of payment. A person who is not an established author and has no agreement for publication does not have a realistic expectation of payment. 1 R(IS) 1/93 Self-employed earners 41330 A claimant’s partner providing a service for payment for not less than 24 hours a week on average is engaged in remunerative work regardless of profit or loss. There can be an expectation of payment derived from profit but it must be a realistic expectation of payment for work being done at the time. The decision maker need not make detailed forecasts of profitability. Where a claimant’s partner is involved in
The average is worked out by dividing the total number of weeks attendance by the number of years in the course. For this purpose the course starts with the first period of full-time study and ends with the last period of full-time study. 1 ESA Regs (NI), reg 14(2)(b); 2 Support Regs (NI), reg 2(9); Support Regs, reg 2(9); SL(Scot) Regs, reg 4(2) Work-related activity and education The guidance on course of study at DMG 41556 - 41583 does not apply where the claimant is required to attend a course of study as part of a requirement to undertake work-related activity1. 1 WR Act (NI), Sch 1, para 6(1)(g); ESA Regs (NI), reg 14(2A) 41585 - 41590 Meaning of full-time General 41591 The decision maker has to consider the meaning of full-time when deciding whether a person is in education. 41592 41593 The term full-time applies to the course itself and not to a person's attendance on it1. It is the time spent by a notional reasonable student that is considered. A person who attends a full-time course on a part-time basis is still in education. 1 R(SB) 40/83; R(SB) 41/83 41594 Each case must be decided on its facts1. The decision maker must look at the sequence of studies and activities that make up the course itself. The nature of the course is not affected by2 1. a person's reasons for attending it or 2. a person's readiness to abandon it or 3. what a particular person happens to be 1 R(SB) 40/83; R(SB) 41/83; 2 R(SB) 2/91 41595 In modular courses a sequence of studies is established once a person has decided which modules to take. This sequence can be distinguished from the work that the person is putting in at any given time. 41596 When deciding whether a course is full-time, decision makers should note that all of the studies and activities involved in it should be taken into account. This includes both supervised and unsupervised study and activity, whether done on or off college premises (see DMG 41611 et seq).
Support Allowance including the work-related activity component from 8.1.17. Roberto’s entitlement to contribution-based Employment and Support Allowance will end on 20.9.17, the combined 365th day of entitlement, unless he is found to have limited capability for work-related activity before that date. 41832 Decision makers should note that the number of days of entitlement includes days where contribution-based Employment and Support Allowance is not payable, but entitlement continues. This includes days where Employment and Support Allowance is not payable 1. for periods of disqualification, for example for imprisonment (see DMG et seq) or 2. because the overlapping rules apply (see DMG Chapter 17) or 3. because it is reduced to nil through pension payments or councillor’s allowances (see DMG 44561 et seq). Note : See DMG 41823 where days of disqualification due to imprisonment exceed six weeks. Example Kylie has been entitled to contribution-based Employment and Support Allowance since 10.12.16. She is not a member of the support group. On 20.4.17 she is sentenced to a period of imprisonment, and the decision maker decides that Kylie is disqualified from receiving contribution-based Employment and Support Allowance which is therefore not payable. Kylie is released on 19.12.17. Her entitlement to contribution-based Employment and Support Allowance terminates on 9.12.17, even though on that day it is not payable. 41833 - 41839 Claimant also entitled to income-related Employment and Support Allowance 41840 Where the contribution-based Employment and Support Allowance claimant 1. is also entitled to income-related Employment and Support Allowance1 or 2. would be entitled to income-related Employment and Support Allowance but for the rules about amounts payable2 (see DMG 44049) or 3. would be entitled to income-related Employment and Support Allowance once entitlement to contribution-based Employment and Support Allowance terminates the decision maker may need to reassess entitlement from the date that contribution-based Employment and Support Allowance terminates. This includes
Appeal against time limit decision 41900 Claimants have a right of appeal against a decision terminating contribution-based Employment and Support Allowance, including converted awards, after 365 days, and are entitled to argue on such an appeal that the award should be extended on the grounds that, on the effective date of that decision, they had limited capability for work-related activity. 41901 The decision maker is not required to make a further determination about limited capability for work-related activity when making a decision terminating Employment and Support Allowance after 365 days. They can rely on any previous determination made that the claimant does not have limited capability for work-related activity. Note : See DMG 41855 et seq for guidance where the claimant states that their condition has deteriorated since the previous determination was made. The Appeal Tribunal is at liberty to consider whether the claimant has limited capability for work-related activity when hearing an appeal against the decision to terminate contribution-based Employment and Support Allowance, even if the issue is not raised by the appeal, provided that the decision maker is given the opportunity to consider any further evidence. 41903 The decision maker can apply for an appeal against a decision to terminate contribution-based Employment and Support Allowance to be struck out where there is no dispute about the calculation of the 365 days, and no arguments are made about whether the claimant is a member of the support group. See DMG Chapter 06 for guidance about strike out. Example 1 Bradley is awarded contribution-based Employment and Support Allowance from 12.6.14, and following application of the work capability assessment on 14.1.15 the decision maker determines that Bradley has limited capability for work but not limited capability for work-related activity. Bradley is placed in the work-related activity group from 11.9.14. Bradley is notified on 11.6.15 that his entitlement to contribution-based Employment and Support Allowance is to terminate from 12.6.15 as he has received Employment and Support Allowance for 365 days. Bradley applies for reconsideration of the decision of 11.6.15, on the grounds that he should be in the support group. The decision maker refuses to revise, as the evidence provided does not show a change in Bradley’s health condition since the previous limited capability for work-related activity determination was made, or indicate that it was incorrect.