Minimum income floor - averaging earnings in the calculation of individual threshold under UC 90(6)(b)

I’ve been wondering if anyone has had any luck arguing that the minimum income floor should not apply because of the scope for averaging earnings under UC regs 90(6)(b).

Regulation 62(1) tells us that the minimum income floor applies to claimants in gainful self employment who are not subject to all work related requirements.  So we have to decide the matter of whether a claimant is subject to all work related requirements before we can decide whether the minimum income floor applies. And a claimant whose earnings exceed the individual threshold under reg 90 is not subject to any work related requirements.

The practical upshot of this would be that you could argue that earnings should be averaged over 3 months or a recognisable cycle - thereby helping eg self employed workers whose earnings are generally over the MIF, but who have the odd bad month.

I’ve just suggested this route to another client, but don’t know whether it will work as not clear as yet how many months there are earnings (tho they are quite high when they happen) & how many none at all (let alone whether there is a pattern). I’m also wondering whether there are any self-employed losses (as the client seems to lurch from months with no income to months with high earnings, but it could just be to do with when payment comes in).

I’ll let you know if I get a result!

On this subject, & assuming the ‘earning enough’ argument doesn’t work, the client is currently off sick, which gives a temporary suspension of the work search requirement under reg 99. However, it seems to me that the client still falls under s22 WRA 2012, & so reg 62(1)(b) still applies. Do people agree?

If so, that seems very unfair. The only other argument I can think of is that for the AP in which the period of sickness fall, the MIF should be much lower (ie not based on 35 hours), because for at least 2 of those weeks he hasn’t been able to work…. Am I missing something? Is there any way in which MIF provision deals with temporarily unwell self-employed people?

This loophole is being closed in the near future (Brexit permitting of course). See here.
It will also affect those earning enough to have no conditionality but make pension contributions bringing their income below the MIF level.

Our jobcentre (contrary to what I understood from the adm and uc regs- that sickness and quiet periods of work is part and parcel of self employment) turn off the mif if the client submits a sick note.

There’s also the carrying forward surplus earnings and losses but I believe it only applies to the subsequent assessments rather than to help seasonal workers