Statutory Rule 2001 No. 18

The Child Support (Maintenance Calculations and Special Cases) Regulations (Northern Ireland) 2001

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© Crown Copyright 2001

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"the Contributions and Benefits Act" means the Social Security Contributions and Benefits (Northern Ireland) Act 1992[3];

"the Great Britain Contributions and Benefits Act" means the Social Security Contributions and Benefits Act 1992[4];

"the Children Order" means the Children (Northern Ireland) Order 1995[5];

"the Jobseekers Order" means the Jobseekers (Northern Ireland) Order 1995[6];

"the Act" means the Child Support, Pensions and Social Security Act (Northern Ireland) 2000[7];

"an authority" has the same meaning as in Article 2 of the Children Order;

"couple" means a man and a woman who are - 

(a) married to each other and are members of the same household; or

(b) not married to each other but are living together as husband and wife;

"course of advanced education" means - 

(a) a full-time course leading to a postgraduate degree or comparable qualification, a first degree or comparable qualification, a Diploma of Higher Education, a higher national diploma, a higher national diploma or higher national certificate of the Business and Technology Education Council or the Scottish Qualifications Authority or a teaching qualification; or

(b) any other full-time course which is a course of a standard above that of an ordinary national diploma, a national diploma or national certificate of the Business and Technology Education Council or the Scottish Qualifications Authority, the advanced level of the General Certificate of Education, a Scottish certificate of education (higher level), a Scottish certificate of sixth year studies or a Scottish National Qualification at Higher Level;

"day" includes any part of a day;

"day to day care" means - 

(a) care of not less than 104 nights in total during the 12 month period ending with the relevant week; or

(b) where, in the opinion of the Department, a period other than 12 months is more representative of the current arrangements for the care of the child in question, care during that period of not less in total than the number of nights which bears the same ratio to 104 nights as that period bears to 12 months,

and for the purpose of this definition - 

(i) where a child is a boarder at a boarding school, or is a patient in a hospital or other circumstances apply, such as where the child stays with a person who is not a parent of the child, and which the Department regards as temporary, the person who, but for those circumstances, would otherwise provide day to day care of the child shall be treated as providing day to day care during the periods in question, and

(ii) "relevant week" shall have the meaning ascribed to it in the definition in this paragraph, except that in a case where notification is given under regulation 7C of the Decisions and Appeals Regulations[8] to the relevant persons on different dates, "relevant week" means the period of 7 days immediately preceding the date of the latest notification;
"the Decisions and Appeals Regulations" means the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999[9];
"disabled person's tax credit" means a disabled person's tax credit under section 128 of the Contributions and Benefits Act[10];
"effective date" means the date on which a maintenance calculation takes effect for the purposes of the Order;
"employed earner" means a person - 

(a) who is gainfully employed in the United Kingdom or the Republic of Ireland either under a contract of service, or in an office (including elective office) with emoluments chargeable to income tax under Schedule E or, as the case may be, chargeable under the legislation of the Republic of Ireland which is analogous to income tax under Schedule E; or

(b) to whom Article 41(2A) of the Order applies[11];

"family" means - 

(a) a couple (including the members of a polygamous marriage) and any member of the same household for whom one or more of them is responsible and who is a child; or

(b) a person who is not a member of a couple and a member of the same household for whom that person is responsible and who is a child;

"home" means - 

(a) the dwelling in which a person and any family of his normally live; or

(b) if he or they normally live in more than one home, the principal home of that person and any family of his,

and for the purpose of determining the principal home in which a person normally lives no regard shall be had to residence in a residential care home or a nursing home during a period which does not exceed 52 weeks or, where it appears to the Department that the person will return to his principal home after that period has expired, such longer period as the Department considers reasonable to allow for the return of that person to that home;

"the Income Support Regulations" means the Income Support (General) Regulations (Northern Ireland) 1987[12];
"the Maintenance Calculation Procedure Regulations" means the Child Support (Maintenance Calculation Procedure) Regulations 2001[13];
"net weekly income" has the meaning given in the Schedule;
"nursing home" has the same meaning as in regulation 19(2) of the Income Support Regulations[14];
"occupational pension scheme" means such a scheme within the meaning in section 1 of the Pension Schemes (Northern Ireland) Act 1993[15] and which is approved for the purposes of Part XIV of the Income and Corporation Taxes Act 1988[16];
"partner" means - 

(a) in relation to a member of a couple, the other member of that couple;

(b) in relation to a member of a polygamous marriage, any other member of that marriage with whom he lives;

"patient" means a person (other than a person who is serving a sentence of imprisonment or detention in a juvenile justice centre within the meaning of Article 51 of the Criminal Justice (Children) (Northern Ireland) Order 1998[17] or a young offenders centre within the meaning of section 2 of the Treatment of Offenders Act (Northern Ireland) 1968[18]) who is regarded as receiving free in-patient treatment within the meaning of the Social Security (Hospital In-Patients) Regulations (Northern Ireland) 1975[19];
"person" does not include an authority;
"personal pension scheme" means such a scheme within the meaning in section 1 of the Pension Schemes (Northern Ireland) Act 1993[20] and which is approved for the purposes of Part XIV of the Income and Corporation Taxes Act 1988;
"polygamous marriage" means any marriage during the subsistence of which a party to it is married to more than one person and in respect of which any ceremony of marriage took place under the law of a country which at the time of that ceremony permitted polygamy;
"prisoner" means a person who is detained in custody pending trial or sentence upon conviction or under a sentence imposed by a court other than a person whose detention is under the Mental Health (Northern Ireland) Order 1986[21];
"relevant training scheme" means - 

(a) arrangements under section 1 of the Employment and Training Act (Northern Ireland) 1950[22] (general functions of Department of Higher and Further Education, Training and Employment as to employment and training for employment);

(b) arrangements made by the Secretary of State for persons enlisted in Her Majesty's forces for any special term of service specified in regulations made under section 2 of the Armed Forces Act 1966[23] (power of Defence Council to make regulations as to engagement of persons in regular forces),

for purposes which include the training of persons who, at the beginning of their training, are under the age of 18;

"relevant week" means - 

(a) in relation to an application for child support maintenance - 


(i) where the application is made by a non-resident parent, the period of 7 days immediately before the application is made, and

(ii) in any other case, the period of 7 days immediately before the date of notification to the non-resident parent and for this purpose "the date of notification to the non-resident parent" means the date on which the non-resident parent is first given notice by the Department under the Maintenance Calculation Procedure Regulations that an application for a maintenance calculation has been made, or treated as made, as the case may be, in relation to which the non-resident parent is named as the parent of the child to whom the application relates;



(b) where a decision ("the original decision") is to be - 



(i) revised under Article 18 of the Order[24], or

(ii) superseded by a decision under Article 19 of the Order[25] on the grounds that the original decision was made in ignorance of, or was based upon a mistake as to, some material fact or was erroneous in point of law,



the period of 7 days which was the relevant week for the purposes of the original decision;

(c) where a decision ("the original decision") is to be superseded under Article 19 of the Order - 



(i) on an application made for the purpose on the basis that a material change of circumstances has occurred since the original decision was made, the period of 7 days immediately preceding the date on which that application was made;

(ii) subject to sub-paragraph (b), in a case where a relevant person is given notice under regulation 7C of the Decisions and Appeals Regulations, the period of 7 days immediately preceding the date of the notification,



except that where, under paragraph 15 of Schedule 1 to the Order, the Department makes separate maintenance calculations in respect of different periods in a particular case, because it is aware of one or more changes of circumstances which occurred after the date which is applicable to that case, the relevant week for the purposes of each separate maintenance calculation made to take account of each such change of circumstances shall be the period of 7 days immediately before the date on which notification was given to the Department of the change of circumstances relevant to that separate maintenance calculation;

"residential care home" has the same meaning as in regulation 19(2) of the Income Support Regulations[26];

"retirement annuity contract" means an annuity contract for the time being approved by the Board of Inland Revenue as having for its main object the provision of a life annuity in old age or the provision of an annuity for a partner or dependant and in respect of which relief from income tax may be given on any premium;

"self-employed earner" means a person who is gainfully employed in the United Kingdom or the Republic of Ireland otherwise than in employed earner's employment (whether or not he is also employed in such employment);

"student" means a person, other than a person in receipt of a training allowance, who is aged less than 19 and attending a full-time course of advanced education or who is aged 19 or over and attending a full-time course of study at an educational establishment; and for the purposes of this definition - 

(a) a person who has started on such a course shall be treated as attending it throughout any period of term or vacation within it, until the last day of the course or such earlier date as he abandons it or is dismissed from it;

(b) a person on a sandwich course (within the meaning of regulation 5(2) of the Education (Student Support) Regulations (Northern Ireland) 2000[27]) shall be treated as attending a full-time course of advanced education or, as the case may be, of study;

"training allowance" means an allowance payable under section 1 of the Employment and Training Act (Northern Ireland) 1950;

"working families' tax credit" means a working families' tax credit under section 127 of the Contributions and Benefits Act[28]; and

"year" means a period of 52 weeks.

    (3) The other description of children prescribed for the purposes of paragraph 10C(2)(b) of Schedule 1 to the Order (relevant other children) is children other than qualifying children in respect of whom the non-resident parent or his partner would receive child benefit under Part IX of the Contributions and Benefits Act but who do not solely because the conditions set out in section 142 of that Act (persons outside Northern Ireland) are not met.

Reduced Rate
     3. The reduced rate is an amount calculated as follows - 

	1 qualifying child of the non- resident parent				2 qualifying children of the non-resident parent				3 or more qualifying children of the non-resident parent
Number of relevant other children of the non-resident parent	0	1	2	3 or more	0	1	2	3 or more	0	1	2	3 or more
T%	25	20.5	19	17.5	35	29	27	25	45	37.5	35	32.5

Flat rate
     4.  - (1) The following benefits, pensions and allowances are prescribed for the purposes of paragraph 4(1)(b) of Schedule 1 to the Order - 

(a) under the Contributions and Benefits Act - 


(i) bereavement allowance under section 39B[29];

(ii) category A retirement pension under section 44[30];

(iii) category B retirement pension under section 48C[31];

(iv) category C and category D retirement pensions under section 78[32];

(v) incapacity benefit under section 30A[33];

(vi) invalid care allowance under section 70[34];

(vii) maternity allowance under section 35[35];

(viii) severe disablement allowance under section 68[36];

(ix) industrial injuries benefit under section 94;

(x) widowed mother's allowance under section 37;

(xi) widowed parent's allowance under section 39A[37], and

(xii) widow's pension under section 38;



(b) contribution-based jobseeker's allowance under Article 3 of the Jobseekers Order[38];

(c) a social security benefit paid by a country other than the United Kingdom;

(d) a training allowance (other than a relevant training scheme); and

(e) a war disablement pension or war widow's pension within the meaning of section 146(2) of the Contributions and Benefits Act or a pension which is analogous to such a pension paid by the government of a country outside the United Kingdom.

    (2) The benefits prescribed for the purposes of paragraph 4(1)(c) of Schedule 1 to the Order are - 

(a) income support under section 123 of the Contributions and Benefits Act[39];

(b) an income-based jobseeker's allowance under Article 3 of the Jobseekers Order.

    (3) Where the non-resident parent is liable to pay a flat rate by virtue of paragraph 4(2) of Schedule 1 to the Order - 

(a) if he has one partner, then the amount payable by the non-resident parent shall be half the flat rate; and

(b) if he has more than one partner, then the amount payable by the non-resident parent shall be the result of apportioning the flat rate equally among him and his partners.

Nil rate
     5.  - (1) The rate payable is nil where the non-resident parent is - 

(a) a student;

(b) a child within the meaning given in Article 3 of the Order;

(c) a prisoner;

(d) a person who is 16 or 17 years old and - 


(i) in receipt of income support or an income-based jobseeker's allowance, or

(ii) a member of a couple whose partner is in receipt of income support or an income-based jobseeker's allowance;



(e) a person receiving an allowance in respect of a relevant training scheme;

(f) a person in a residential care home or nursing home who - 



(i) is in receipt of a pension, benefit or allowance specified in regulation 4(1) or (2), or

(ii) has the whole or part of the cost of his accommodation met by a Health and Social Services Board or an HSS trust;



(g) a patient in hospital who is in receipt of income support whose applicable amount includes an amount under paragraph 1(a) or (b) of Schedule 7 to the Income Support Regulations[40] (patient for more than 6 weeks);

(h) a person in receipt of a benefit specified in regulation 4(1) the amount of which has been reduced in accordance with the provisions of regulations 4(d)[41] and 6[42] of the Social Security (Hospital In-Patients) Regulations (Northern Ireland) 1975 (circumstances in which personal benefit is to be adjusted and adjustment of personal benefit after 52 weeks in hospital);

(i) a person who would be liable to pay the flat rate because he satisfies the description in paragraph 4(1)(c) of Schedule 1 to the Order but his net weekly income, inclusive of - 



(i) any benefit, pension or allowance that he receives which is prescribed for the purposes of paragraph 4(1)(b) of Schedule 1 to the Order, and

(ii) any benefit that he or his partner receives which is prescribed for the purposes of paragraph 4(1)(c) of Schedule 1 to the Order,



is less that £5 a week.

    (2) In this regulation - 

(a) a "Health and Social Services Board" means a Health and Social Services Board established under Article 16 of the Health and Personal Social Services (Northern Ireland) Order 1972[43];

(b) an "HSS trust" means a Health and Social Services trust established under Article 10 of the Health and Personal Social Services (Northern Ireland) Order 1991[44], by which functions are exercisable by virtue of an authorisation for the time being in operation under Article 3(1) of the Health and Personal Social Services (Northern Ireland) Order 1994[45].

Apportionment
     6. If, in making the apportionment required by regulation 4(3) or paragraph 6 of Schedule 1 to the Order[46], the effect of the application of regulation 2(2) (rounding) would be such that the aggregate amount of child support maintenance payable by a non-resident parent would be different from the aggregate amount payable before any apportionment, the Department shall adjust that apportionment so as to eliminate that difference; and that adjustment shall be varied from time to time so as to secure that, taking one week with another and so far as is practicable, each person with care receives the amount which that person with care would have received if no adjustment had been made under this paragraph.

Shared care
     7.  - (1) For the purposes of paragraphs 7 and 8 of Schedule 1 to the Order a night will count for the purposes of shared care where the non-resident parent - 

(a) has the care of a qualifying child overnight; and

(b) the qualifying child stays at the same address as the non-resident parent.

    (2) For the purposes of paragraphs 7 and 8 of Schedule 1 to the Order, a non-resident parent has the care of a qualifying child when he is looking after the child.

    (3) Subject to paragraph (4), in determining the number of nights for the purposes of shared care, the Department shall consider the 12 month period ending with the relevant week and for this purpose "relevant week" has the same meaning as in the definition of day to day care in regulation 1(2).

    (4) The circumstances in which the Department may have regard to a number of nights over less than a 12 month period are where there has been no pattern for the frequency with which the non-resident parent looks after the qualifying child for the 12 months preceding the relevant week, or the Department is aware that a change in that frequency is intended, and in that case it shall have regard to such lesser period as may seem to the Department to be appropriate, and the Table in paragraph 7(4) and the period in paragraph 8(2) of Schedule 1 to the Order shall have effect subject to the adjustment described in paragraph (5).

    (5) Where paragraph (4) applies, the Department shall adjust the number of nights in that lesser period by applying to that number the ratio which the period of 12 months bears to that lesser period.

    (6) Where a child is a boarder at a boarding school, or is a patient in a hospital, the person who, but for those circumstances, would otherwise have care of the child overnight, shall be treated as providing that care during the periods in question.

    (3) For the purposes of this regulation and regulation 10 "child benefit" means child benefit payable under Part IX of the Contributions and Benefits Act[47].

Care provided in part by an authority
     9.  - (1) This regulation applies where paragraph (2) applies and the rate of child support maintenance payable is the basic rate, or the reduced rate, or has been calculated following agreement to a variation where the non-resident parent's liability would otherwise have been a flat rate or the nil rate.

    (2) Where the circumstances of a case are that the care of the qualifying child is shared between the person with care and an authority and - 

(a) the qualifying child is in the care of an authority for 52 nights or more in the 12 month period ending with the relevant week;

(b) where, in the opinion of the Department, a period other than the 12 month period mentioned in sub-paragraph (a) is more representative of the current arrangements for the care of the qualifying child, the qualifying child is in the care of an authority during that period for no fewer that the number of nights which bears the same ratio to 52 nights as that period bears to 12 months; or

(c) it is intended that the qualifying child shall be in the care of an authority for a number of nights in a period from the effective date,

that case shall be treated as a special case for the purposes of the Order.

    (3) In a case where this regulation applies, the amount of child support maintenance which the non-resident parent is liable to pay the person with care of that qualifying child is the amount calculated in accordance with the provisions of Part I of Schedule 1 to the Order and decreased in accordance with this regulation.

    (4) First, there is to be a decrease according to the number of nights spent or to be spent by the qualifying child in the care of an authority during the period under consideration.

    (5) Where paragraph (2)(b) or (c) applies, the number of nights in the period under consideration shall be adjusted by the ratio which the period of 12 months bears to the period under consideration.

    (6) After any adjustment under paragraph (5), the amount of the decrease for one child is set out in the following Table - 

Number of nights in care of an authority	Fraction to subtract
52-103	One-seventh
104-155	Two-sevenths
156-207	Three-sevenths
208-259	Four-sevenths
260-262	Five-sevenths

    (7) If the non-resident parent and the person with care have more than one qualifying child, the applicable decrease is the sum of the appropriate fractions in the Table divided by the number of such qualifying children.

    (8) In a case where the amount of child support maintenance which the non-resident parent is liable to pay in relation to the same person with care is to be decreased in accordance with the provisions of both this regulation and of paragraph 7 of Schedule 1 to the Order, read with regulation 7, the applicable decrease is the sum of the appropriate fractions derived under those provisions.

    (9) If the application of this regulation would decrease the weekly amount of child support maintenance (or the aggregate of all such amounts) payable by the non-resident parent to less than the rate stated in or prescribed for the purposes of paragraph 4(1) of Schedule 1 to the Order, he is instead liable to pay child support maintenance at a rate equivalent to that rate, apportioned (if appropriate) in accordance with paragraph 6 of Schedule 1 to the Order and regulation 6.

    (10) Where a qualifying child is a boarder at a boarding school or is an in-patient at a hospital, the qualifying child shall be treated as being in the care of an authority for any night that the authority would otherwise have been providing such care.

    (11) A child is in the care of an authority for any night in which he is being looked after by an authority within the meaning of Article 25 of the Children Order.

Care provided for relevant other child by an authority
     10. Where a child other than a qualifying child is cared for in part or in full by an authority and the non-resident parent or his partner receives child benefit for that child, the child is a relevant other child for the purposes of Schedule 1 to the Order.

Non-resident parent liable to pay maintenance under a maintenance order
     11.  - (1) Subject to paragraph (2), where the circumstances of a case are that - 

(a) an application for child support maintenance is made or treated as made, as the case may be, with respect to a qualifying child and a non-resident parent; and

(b) an application for child support maintenance for a different child cannot be made under the Order but that non-resident parent is liable to pay maintenance under a maintenance order for that child,

that case shall be treated as a special case for the purposes of the Order.

    (2) This regulation applies where the rate of child support maintenance payable is the basic rate, or the reduced rate, or has been calculated following agreement to a variation where the non-resident parent's liability would otherwise have been a flat rate or the nil rate.

    (3) Where this regulation applies, the amount of child support maintenance payable by the non-resident parent shall be ascertained by - 

(a) calculating the amount of maintenance payable as if the number of qualifying children of that parent included any children with respect to whom he is liable to make payments under an order referred to in paragraph (1)(b); and

(b) apportioning the amount so calculated between the qualifying children and the children with respect to whom he is liable to make payments under the order referred to in paragraph (1)(b),

and the amount payable shall be the amount apportioned to the qualifying children, and the amount payable to each person with care shall be that amount subject to the application of apportionment under paragraph 6 of Schedule 1 to the Order and the shared care provisions in paragraph 7 of that Schedule.

    (4) In a case where this regulation applies paragraph 7 of Schedule 1 to the Order (shared care) and regulation 9 (care provided in part by an authority) shall not apply in relation to a child in respect of whom the non-resident parent is liable to make payments under a maintenance order as provided in paragraph (1)(b).

Child who is a boarder or an in-patient in hospital
     12.  - (1) Where the circumstances of the case are that - 

(a) a qualifying child is a boarder at a boarding school or is an in-patient in a hospital; and

(b) by reason of those circumstances, the person who would otherwise provide day to day care is not doing so,

that case shall be treated as a special case for the purposes of the Order.

    (2) For the purposes of this case, Article 4(3)(b) of the Order shall be modified so that for the reference to the person who usually provides day to day care for the child there shall be substituted a reference to the person who would usually be providing such care for that child but for the circumstances specified in paragraph (1).

Child who is allowed to live with his parent under Article 27(5) of the Children Order
     13.  - (1) Where the circumstances of a case are that a qualifying child who is in the care of an authority is allowed by the authority to live with a parent of his under Article 27(5) of the Children Order, that case shall be treated as a special case for the purposes of the Order.

    (2) For the purposes of this case, Article 4(3)(b) of the Order shall be modified so that for the reference to the person who usually provides day to day care for the child there shall be substituted a reference to the parent of the child whom the authority allow the child to live with under Article 27(5) of the Children Order.

Person with part-time care who is not a non-resident parent
     14.  - (1) Where the circumstances of a case are that - 

(a) two or more persons who do not live in the same household each provide day to day care for the same qualifying child; and

(b) those persons do not include any parent who is treated as a non-resident parent of that child by regulation 8(2),

that case shall be treated as a special case for the purposes of the Order.

    (2) For the purposes of this case - 

(a) the person whose application for a maintenance calculation is being proceeded with shall, subject to sub-paragraph (b), be entitled to receive all of the child support maintenance payable under the Order in respect of the child in question;

(b) on request being made to the Department by - 


(i) that person, or

(ii) any other person who is providing day to day care for that child and who intends to continue to provide that care,



the Department may make arrangements for the payment of any child support maintenance payable under the Order to the persons who provide such care in the same ratio as that in which it appears to the Department that each is to provide such care for the child in question;

(c) before making an arrangement under sub-paragraph (b), the Department shall consider all of the circumstances of the case and in particular the interests of the child, the present arrangements for the day to day care of the child in question and any representations or proposals made by the persons who provide such care for that child.

(a) an application was made and not determined for - 


(i) a maintenance assessment;

(ii) a departure direction, or

(iii) a revision or supersession of a decision;



(b) the Department had begun but not completed a revision or supersession of a decision on its own initiative;

(c) any time limit provided for in Regulations for making an application for a revision or a departure direction had not expired; or

(d) any appeal was made but not decided or any time limit for making an appeal had not expired,

the provisions of the 1992 Regulations shall continue to apply for the purposes of - 

(aa) thethe decision on the application referred to in sub-paragraph (a);

(bb) thethe revision or supersession referred to in sub-paragraph (b);

(cc) thethe ability to apply for the revision or the departure direction referred to in sub-paragraph (c) and the decision whether to revise or to give a departure direction following any such application;

(dd) theany appeal outstanding or made during the time limit referred to in sub-paragraph (d); or

(ee) theany revision, supersession, appeal or application for a departure direction in relation to a decision, ability to apply or appeal referred to in sub-paragraphs (aa) to (dd).

    (3) Where immediately before the commencement date in respect of a particular case an interim maintenance assessment was in force, the provisions of the 1992 Regulations shall continue to apply for the purposes of the decision under Article 19 of the Order[49] to make a maintenance assessment calculated in accordance with Part I of Schedule 1 to the Order before its amendment by the Act and any revision, supersession or appeal in relation to that decision.

    (4) Where under regulation 28(1) of the Child Support (Transitional Provisions) Regulations (Northern Ireland) 2001[50] an application for a maintenance calculation is treated as an application for a maintenance assessment, the provisions of the 1992 Regulations shall continue to apply for the purposes of the determination of the application and any revision, supersession or appeal in relation to any such assessment made.

    (5) Where after the commencement date a maintenance assessment is revised from a date which is prior to the commencement date the 1992 Regulations shall apply for the purposes of that revision.

    (6) For the purposes of this regulation - 

(a) "departure direction", "maintenance assessment" and "interim maintenance assessment" have the same meaning as in Article 2(2) of the Order[51] before its amendment by the Act; and

(b) "revision or supersession" means a revision or supersession of a decision under Article 18 or 19 of the Order[52] before their amendment by the Act.

Sealed with the Official Seal of the Department for Social Development on


23rd January 2001.

L.S.

John O'Neill
Senior Officer of the Department for Social Development

(a) subject to sub-paragraph (c), the amount to be deducted in respect of income tax shall be calculated by applying to that income the rates of income tax applicable at the effective date less only the personal relief to which that person is entitled under Chapter 1 of Part VII of the Income and Corporation Taxes Act 1988 (personal reliefs); but if the period in respect of which that income is to be estimated is less than a year, the amount of the personal relief deductible under this paragraph shall be calculated on a pro-rata basis and the amount of income to which each tax rate applies shall be determined on the basis that the ratio of that amount to the full amount of the income to which each tax rate applies is the same as the ratio of the proportionate part of that personal relief to the full personal relief;

(b) subject to sub-paragraph (c), the amount to be deducted in respect of Class 1 contributions under the Contributions and Benefits Act or, as the case may be, the Great Britain Contributions and Benefits Act, shall be calculated by applying to that income the appropriate primary percentage applicable on the effective date;

(c) in relation to any bonus or commission which may be included in that person's income - 


(i) the amount to be deducted in respect of income tax shall be calculated by applying to the gross amount of that bonus or commission the rate or rates of income tax applicable at the effective date;

(ii) the amount to be deducted in respect of primary Class 1 contributions under the Contributions and Benefits Act or, as the case may be, the Great Britain Contributions and Benefits Act, shall be calculated by applying to the gross amount of that bonus or commission the appropriate main primary percentage applicable on the effective date but no deduction shall be made in respect of the portion (if any) of the bonus or commission which, if added to the estimated income, would cause such income to exceed the upper earnings limit for Class 1 contributions as provided for in section 5(1)(b) of the Contributions and Benefits Act[53] or, as the case may be, the Great Britain Contributions and Benefits Act;



(d) the amount to be deducted in respect of any sums or contributions towards an occupational pension scheme or personal pension scheme shall be the full amount of any such payments made or, where that scheme is intended partly to provide a capital sum to discharge a mortgage secured upon that parent's home, 75 per centum of any such payments made.

Earnings
     4.  - (1) Subject to sub-paragraph (2), "earnings" means, in the case of employment as an employed earner, any remuneration or profit derived from that employment and includes - 

(a) any bonus, commission, payment in respect of overtime, royalty or fees;

(b) any holiday pay except any payable more than 4 weeks after termination of the employment;

(c) any payment by way of a retainer;

(d) any statutory sick pay under Part XI of the Contributions and Benefits Act or statutory maternity pay under Part XII of the Contributions and Benefits Act;

(e) any payment in lieu of notice, and any compensation in respect of the absence or inadequacy of any such notice, but only in so far as such payment or compensation represents loss of income; and

(f) any payment made under the legislation of, or under any scheme operating in, the Republic of Ireland which is analogous to income to which this sub-paragraph relates.

    (2) Earnings for the purposes of this Part do not include - 

(a) any payment in respect of expenses wholly, exclusively and necessarily incurred in the performance of the duties of the employment;

(b) any tax-exempt allowance made by an employer to an employee;

(c) any gratuities paid by customers of the employer;

(d) any payment in kind;

(e) any advance of earnings or any loan made by an employer to an employee;

(f) any amount received from an employer during a period when the employee has withdrawn his services by reason of a trade dispute;

(g) any payment made in respect of the performance of duties as - 


(i) an auxiliary coastguard in respect of coast rescue activities;

(ii) a part-time fireman in a fire brigade maintained in pursuance of the Fire Services (Northern Ireland) Order 1984[54];

(iii) a person engaged part-time in the manning or launching of a lifeboat;

(iv) a member of any territorial or reserve force prescribed in Part I of Schedule 3 to the Social Security (Contributions) Regulations 1979[55];



(h) any payment made by a district council to a member of that council in respect of the performance of his duties as a member, other than any expenses wholly, exclusively, and necessarily incurred in the performance of those duties; and

(i) any payment where - 



(i) the employment in respect of which it was made has ceased, and

(ii) a period of the same length as the period by reference to which it was calculated has expired since that cessation but prior to the effective date, or



(j) where, in any week or other period which falls within the period by reference to which earnings are calculated, earnings are received both in respect of a previous employment and in respect of a subsequent employment, the earnings in respect of the previous employment.

Deductions
     5.  - (1) The deductions to be taken from gross earnings to calculate net income for the purposes of this Part are any amount deducted from those earnings by way of - 

(a) income tax;

(b) primary Class 1 contributions under the Contributions and Benefits Act or under the Great Britain Contributions and Benefits Act; or

(c) any sums paid by the non-resident parent towards an occupational pension scheme or personal pension scheme or, where that scheme is intended partly to provide a capital sum to discharge a mortgage secured upon that parent's home, 75 per centum of any such sums.

    (2) For the purposes of sub-paragraph (1)(a) amounts deducted by way of income tax shall be the amounts actually deducted, including in respect of payments which are not included as earnings in paragraph 4.

    (3) Where a person is an employed earner in the Republic of Ireland the amounts deducted for income tax and primary Class 1 contributions shall be such amounts as, in the opinion of the Department, would have been deducted had the person been employed in Northern Ireland.

Calculation or estimate
     6.  - (1) Subject to sub-paragraphs (2) to (4), the amount of earnings to be taken into account for the purpose of calculating net income shall be calculated or estimated by reference to the average earnings at the relevant week having regard to such evidence as is available in relation to that person's earnings during such period as appears appropriate to the Department, beginning not earlier than 8 weeks before the relevant week and ending not later than the date of the calculation, and for the purposes of the calculation or estimate the Department may consider evidence of that person's cumulative earnings during the period beginning with the start of the year of assessment (within the meaning of section 832 of the Income and Corporation Taxes Act 1988) in which the relevant week falls and ending with a date no later than the date when the calculation is made.

    (2) Subject to sub-paragraph (4), where a person has claimed, or has been paid, working families' tax credit or disabled person's tax credit on any day during the period beginning not earlier than 8 weeks before the relevant week and ending not later than the date on which the calculation is made, the Department may have regard to the amount of earnings taken into account in determining entitlement to those tax credits in order to calculate or estimate the amount of earnings to be taken into account for the purposes of calculating net earnings, notwithstanding the fact that entitlement to those tax credits may have been determined by reference to earnings attributable to a period other than that specified in sub-paragraph (1).

    (3) Where a person's earnings during the period of 52 weeks ending with the relevant week include a bonus or commission made in anticipation of the calculation of profits which is paid separately from, or in relation to a longer period than, the other earnings with which it is paid, the amount of that bonus or commission shall be determined for the purposes of the calculation of earnings by aggregating any such payments received in that period and dividing by 52.

    (4) Where a calculation would, but for this sub-paragraph, produce an amount which, in the opinion of the Department, does not accurately reflect the normal amount of the earnings of the person in question, such earnings, or any part of them, shall be calculated by reference to such other period as may, in the particular case, enable the normal weekly earnings of that person to be determined more accurately, and for this purpose the Department shall have regard to - 

(a) the earnings received, or due to be received from any employment in which the person in question is engaged, has been engaged or is due to be engaged;

(b) the duration and pattern, or the expected duration and pattern, of any employment of that person.

"revised notice" means a notice issued by the Inland Revenue where there has been a tax calculation notice and there is a revision of the figures relating to the income of a self-employed earner following an enquiry under section 9A of the Taxes Management Act 1970[56] or otherwise by the Inland Revenue.

    (8) Any request by the Department in accordance with sub-paragraph (2) for the provision of information shall set out the possible consequences of failure to provide such information, including details of the offences provided for in Article 16A of the Order[57] for failing to provide, or providing, false information.

Figures calculated using gross receipts less deductions
     8.  - (1) Where - 

(a) the conditions of paragraph 7(6) are not satisfied; or

(b) the Department accepts that it is not reasonably practicable for the self-employed earner to provide information relating to his gross earnings from self-employment in the forms submitted to, or as issued or revised by, the Inland Revenue; or

(c) in the opinion of the Department, information as to the gross earnings of the self-employed earner which has satisfied the criteria set out in paragraph 7 does not accurately reflect the normal weekly earnings of the self-employed earner,

net income means in the case of employment as a self-employed earner his earnings calculated by reference to the gross receipts of the employment less the deductions provided for in sub-paragraph (2).

    (2) The deductions to be taken from the gross receipts to calculate net earnings for the purposes of this paragraph are - 

(a) any expenses which are reasonably incurred and are wholly and exclusively defrayed for the purposes of the earner's business in the period by reference to which his earnings are determined under paragraph 9(2) or (3);

(b) any value added tax paid in the period by reference to which his earnings are determined in excess of value added tax received in that period;

(c) any amount in respect of income tax determined in accordance with sub-paragraph (4);

(d) any amount of National Insurance contributions determined in accordance with sub-paragraph (4); and

(e) any premium paid by the non-resident parent in respect of a retirement annuity contract or a personal pension scheme or, where that scheme is intended partly to provide a capital sum to discharge a mortgage or a charge secured upon the parent's home, 75 per centum of contributions payable.

    (3) For the purposes of sub-paragraph (2)(a) - 

(a) such expenses include - 


(i) repayment of capital on any loan used for the replacement, in the course of business, of equipment or machinery, or the repair of an existing business asset except to the extent that any sum is payable under an insurance policy for its repair;

(ii) any income expended in the repair of an existing business asset except to the extent that any sum is payable under an insurance policy for its repair, and

(iii) any payment of interest on a loan taken out for the purposes of the business;



(b) such expenses do not include - 



(i) repayment of capital on any other loan taken out for the purposes of the business;

(ii) any capital expenditure;

(iii) the depreciation of any capital assets;

(iv) any sum employed, or intended to be employed, in the setting up or expansion of the business;

(v) any loss incurred before the beginning of the period by reference to which earnings are determined;

(vi) any expenses incurred in providing business entertainment, or

(vii) any loss incurred in any other employment in which he is engaged as a self-employed earner.

    (4) For the purposes of sub-paragraph (2)(c) and (d), the amounts in respect of income tax and National Insurance contributions to be deducted from the gross receipts shall be determined in accordance with paragraph 7(4) and (5) as if in paragraph 7(4) references to gross earnings were references to taxable earnings and in this sub-paragraph "taxable earnings" means the gross receipts of the earner less the deductions mentioned in sub-paragraph (2)(a) and (b).

    (5) Where the person is a self-employed earner in the Republic of Ireland the amounts to be deducted for income tax and social security contributions shall be such amounts as in the opinion of the Department would have been deducted had the person been employed in Northern Ireland.

Rules for calculation under paragraph 8
     9.  - (1) This paragraph applies only where the net income of a self-employed earner is calculated or estimated under paragraph 8.

    (2) Where - 

(a) a non-resident parent has been a self-employed earner for 52 weeks or more, including the relevant week, the amount of his net weekly income shall be determined by reference to the average of the earnings which he has received in the 52 weeks ending with the relevant week; or

(b) a non-resident parent has been a self-employed earner for a period of less than 52 weeks including the relevant week, the amount of his net weekly income shall be determined by reference to the average of the earnings which he has received during that period.

    (3) Where a calculation would, but for this sub-paragraph, produce an amount which, in the opinion of the Department, does not accurately reflect the normal weekly income of the non-resident parent in question, such earnings, or any part of them, shall be calculated by reference to such other period as may, in the particular case, enable the normal weekly earnings of the non-resident parent to be determined more accurately and for this purpose the Department shall have regard to - 

(a) the earnings from self-employment received, or due to be received, by him; and

(b) the duration and pattern, or the expected duration and pattern, of any self-employment of that non-resident parent.

    (4) Where a person has claimed, or has been paid, working families' tax credit or disabled person's tax credit on any day during the period beginning not earlier than 8 weeks before the relevant week and ending not later than the date on which the calculation is made, the Department may have regard to the amount of earnings taken into account in determining entitlement to those tax credits in order to calculate or estimate the amount of earnings to be taken into account for the purposes of calculating net income, notwithstanding the fact that entitlement to those tax credits may have been determined by reference to earnings attributable to a period other than that specified in sub-paragraph (2).

Income from board or lodging
     10. In a case where a non-resident parent is a self-employed earner who provides board and lodging, his earnings shall include payments received for that provision where those payments are the only or main source of income of that earner.

(a) where during the period which is used by the Inland Revenue to calculate his income the normal weekly earnings (as determined in accordance with Chapter II of Part IV of the Family Credit (General) Regulations (Northern Ireland) 1987[58]) of that parent exceed those of the other person, the amount payable by way of working families' tax credit shall be treated as the income of that parent;

(b) where during that period the normal weekly earnings of that parent equal those of the other person, half of the amount payable by way of working families' tax credit shall be treated as the income of that parent; and

(c) where during that period the normal weekly earnings of that parent are less than those of that other person, the amount payable by way of working families' tax credit, shall not be treated as the income of that parent.

    (3) Where - 

(a) working families' tax credit is in payment; and

(b) not later than the effective date the person, or, if more than one, each of the persons by reference to whose engagement, and normal engagement, in remunerative work that payment has been calculated is no longer the partner of the person to whom that payment is made,

the payment in question shall only be treated as the income of the non-resident parent in question where he is in receipt of it.

Employment Credits
     12. Payments made by way of employment credits under section 1(1) of the Employment and Training Act (Northern Ireland) 1950[59] to a non-resident parent who is participating in a scheme arranged under section 1(1) of that Act and known as the New Deal 50 plus shall be treated as the income of the non-resident parent, at the rate payable at the effective date.

Disabled Person's Tax Credits
     13. Payments made by way of disabled person's tax credit under section 128 of the Contributions and Benefits Act[60] to a non-resident parent shall be treated as the income of the non-resident parent, at the rate payable at the effective date.

[2] See Article 8(b) of S.R. 1999 No. 481back

[3] 1992 c. 7back

[4] 1992 c. 4back

[5] S.I. 1995/755 (N.I. 2)back

[6] S.I. 1995/2705 (N.I. 15)back

[7] 2000 c. 4 (N.I.)back

[8] Regulation 7C was inserted by regulation 2(8) of S.R. 2001 No. 23back

[9] S.R. 1999 No. 162; relevant amending regulations are S.R. 2001 No. 23back

[10] Section 128 was amended by Article 12(2) of, and paragraph 32 of Schedule 1 to, the Social Security (Incapacity for Work) (Northern Ireland) Order 1994 (S.I. 1994/1898 (N.I. 12)), paragraph 17 of Schedule 2 to the Jobseekers (Northern Ireland) Order 1995 (S.I. 1995/2705 (N.I. 15)) and sections 1(2) and 14(4) of, and paragraph 4(h) of Schedule 1 to, the Tax Credits Act 1999 (c. 10)back

[11] Paragraph (2A) was inserted by section 21(3) of the Child Support, Pensions and Social Security Act (Northern Ireland) 2000back

[12] S.R. 1987 No. 459; relevant amending rules are S.R. 1988 No. 318, S.R. 1990 No. 131, S.R. 1993 No. 149, S.R. 1996 No. 288 and S.R. 2000 No. 38back

[13] S.R. 2001 No. 17back

[14] The definition of "nursing home" was substituted by paragraph 6(5)(b) of Schedule 2 to S.R. 1993 No. 149back

[15] 1993 c. 49back

[16] 1988 c. 33back

[17] S.I. 1998/1504 (N.I. 9)back

[18] 1968 c. 29; section 2 was amended by the Treatment of Offenders (Northern Ireland) Order 1989 (S.I. 1989/1344 (N.I. 15)) and the Criminal Justice (Children) Northern Ireland) Order 1998back

[19] S.R. 1975 No. 109; relevant amending regulations are S.R. 1992 No. 453back

[20] The definition of "personal pension scheme" was amended by paragraph 2(1)(a) of Schedule 2 to the Welfare Reform and Pensions (Northern Ireland) Order 1999 (S.I. 1999/3147 (N.I. 11))back

[21] S.I. 1986/595 (N.I. 4)back

[22] 1950 c. 29 (N.I.); section 1 was amended by Article 3 of the Employment and Training (Amendment) (Northern Ireland) Order 1988 (S.I. 1988/1087 (N.I. 10)) and by Article 5 of the Industrial Training (Northern Ireland) Order 1990 (S.I. 1990/1200 (N.I. 8)). See S.R. 1999 No. 481back

[23] 1966 c. 45back

[24] Article 18 was substituted by Article 40 of the Social Security (Northern Ireland) Order 1998 (S.I. 1998/1506 (N.I. 10)) and is amended by section 8 of the Child Support, Pensions and Social Security Act (Northern Ireland) 2000back

[25] Article 19 was substituted by Article 41 of the Social Security (Northern Ireland) Order 1998 and is amended by section 9 of the Child Support, Pensions and Social Security Act (Northern Ireland) 2000back

[26] The definition of "residential care home" was inserted by paragraph 1(3)(a) of Schedule 1 to S.R. 1993 No. 149back

[27] S.R. 2000 No. 213back

[28] Section 127 was amended by paragraph 16 of Schedule 2 to the Jobseekers (Northern Ireland) Order 1995 and section 1(2) of, and paragraph 4(h) of Schedule 1 to, the Tax Credits Act 1999back

[29] Section 39B was inserted by Article 51 of the Welfare Reform and Pensions (Northern Ireland) Order 1999 (S.I. 1999/3147 (N.I. 11))back

[30] Section 44 was amended by paragraph 11 of Schedule 1 to the Social Security (Incapacity for Work) (Northern Ireland) Order 1994 and Article 125(2) of the Pensions (Northern Ireland) Order 1995 (S.I. 1995/3213 (N.I. 22))back

[31] Section 48C was inserted by paragraph 3(1) of Schedule 2 to the Pensions (Northern Ireland) Order 1995 and amended by paragraph 6 of Schedule 8 to the Welfare Reform and Pensions (Northern Ireland) Order 1999back

[32] Section 78 was amended by paragraph 14 of Schedule 2 to the Pensions (Northern Ireland) Order 1995back

[33] Section 30A was inserted by Article 3(1) of the Social Security (Incapacity for Work) (Northern Ireland) Order 1994back

[34] Section 70 was amended by regulation 2(3) of S.R. 1994 No. 370back

[35] Section 35 was amended by Article 4(a) of the Still-Birth (Definition) (Northern Ireland) Order 1992 (S.I. 1992/1310 (N.I. 10)), regulation 2 of S.R. 1994 No. 176 and Article 50 of the Welfare Reform and Pensions (Northern Ireland) Order 1999back

[36] Section 68 is repealed prospectively with savings by Article 62 of, and Part IV of Schedule 10 to, the Welfare Reform and Pensions (Northern Ireland) Order 1999back

[37] Section 39A is inserted prospectively by Article 52(2) of the Welfare Reform and Pensions (Northern Ireland) Order 1999back

[38] Article 3 was amended by paragraph 3 of Schedule 7 to the Welfare Reform and Pensions (Northern Ireland) Order 1999back

[39] Section 123 was amended by paragraph 13 of Schedule 2 to the Jobseekers (Northern Ireland) Order 1995back

[40] Paragraph 1(a) and (b) was amended by regulation 22 of, and paragraph 17(a)(i) of Schedule 1 to, S.R. 1988 No. 318, regulation 19(a) of S.R. 1990 No.131, regulation 5(5)(a) of S.R. 1996 No. 288 and Part I of Schedule 5 to S.R. 2000 No. 38back

[41] Regulation 4(d) was amended by regulation 2(3)(b) and (c) of S.R. 1987 No. 391back

[42] Regulation 6 was amended by regulation 3(2) of S.R. 1977 No. 316, Article 19(1)(a) of the Social Security (Northern Ireland) Order 1986 (S.I. 1986/1888 (N.I. 18)), regulation 2(2) of S.R. 1987 No. 12 and regulation 2(6) of S.R. 1987 No. 391back

[43] S.I. 1972/1265 (N.I. 14)back

[44] S.I.1991/194 (N.I. 1); Article 10 was amended by Article 3(8) of the Health and Personal Social Services (Northern Ireland) Order 1994 (S.I. 1994/429 (N.I. 2))back

[45] S.I. 1994/429 (N.I. 2)back

[46] Part I of Schedule 1 was substituted by section 1(3) of, and Schedule 1 to, the Child Support, Pensions and Social Security Act (Northern Ireland) 2000back

[47] Part IX was amended by paragraph 185 of Schedule 9 to the Children (Northern Ireland) Order 1995 and section 63 of the Child Support, Pensions and Social Security Act (Northern Ireland) 2000back

[48] S.R. 1992 No. 341back

[49] Article 19 was substituted by Article 41 of the Social Security (Northern Ireland) Order 1998back

[50] S.R. 2001 No. 19back

[51] The definition of "departure direction" was inserted by paragraph 2 of Schedule 3 to the Child Support (Northern Ireland) Order 1995back

[52] Article 18 was substituted by Article 40 of the Social Security (Northern Ireland) Order 1998back

[53] Section 5(1)(b) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 was substituted by Article 48(1) of the Social Security (Northern Ireland) Order 1998 and section 5(1)(b) of the Social Security Contributions and Benefits Act 1992 (c. 4) was substituted by section 51(1) of the Social Security Act 1998 (c. 14)back

[54] S.I. 1984/1821 (N.I. 11)back

[55] S.I. 1979/591; relevant amending instruments are S.I. 1980/1975 and S.I. 1994/1553back

[56] 1970 c. 9; section 9A was inserted by section 180 of the Finance Act 1994 (c. 9) and amended by section 133 and paragraph 2 of Schedule 19 to the Finance Act 1996 (c. 8)back

[57] Article 16A was inserted by section 13 of the Child Support, Pensions and Social Security Act (Northern Ireland) 2000back

[58] S.R. 1987 No. 463; relevant amending regulations are S.R. 1988 Nos. 303 and 423, S.R. 1991 No. 326, S.R. 1992 No. 148, S.R. 1993 Nos. 120 and 373, S.R. 1994 Nos. 77, 274 and 327, S.R. 1995 No. 86, S.R. 1996 Nos. 93, 476 and 583, S.R. 1997 No. 515, S.R. 1998 No. 2 and 423 and S.R. 1999 No. 107back

[59] 1950 c. 29 (N.I.); section 1 was amended by Article 3 of the Employment and Training (Amendment) (Northern Ireland) Order 1988 (S.I. 1988/1087 (N.I. 10)) and by Article 5 of the Industrial Training (Northern Ireland) Order 1990 (S.I. 1990/1200 (N.I. 8))back

[60] Section 128 was amended by Article 12 of, and paragraph 32 of Schedule 1 to, the Social Security (Incapacity for Work) (Northern Ireland) Order 1994, paragraph 17 of Schedule 2 to the Jobseekers (Northern Ireland) Order 1995 and section 14 of, and Schedule 1 to, the Tax Credits Act 1999back