SMP and HB

I have a client who has gone onto SMP - Her additional work disregard of £17.10 has been removed as she is not classed as working - WTC is still in payment

I am very confused!

Shell Dent - 16 January 2019 01:01 PM

I have a client who has gone onto SMP - Her additional work disregard of £17.10 has been removed as she is not classed as working - WTC is still in payment

I am very confused!

Looking at the Guide to Housing Benefit by Shelter (paras 14.68 - 14.72) I think it may be down to exactly why she was getting the extra disregard. There are several different ways of qualifying for it the three below are the ones I’m guessing will be most relevant in this case (there are two more, one relates to pensioners and the other limited capability for work):

1) You get WTC which must include the 30 hour element

2) You are 25 or older and work at least 30 hours per week

3) You are responsible for a child and work at least 16 hours per week

Para 14.72 lists times when you do not count as working at least 16 hours per week which covers a few bases but the key one here is:

e) while you are on maternity, paternity, shared parental or adoption leave, with the right to return to work under your contact or under employment law.

This seemed remarkably harsh to me so I doubled checked the HB Regs 2006 and found, sure enough, in Regulation 6(7) the following:

“A person shall not be treated as engaged in remunerative work on any day on which the person is on maternity leave, paternity leave or adoption leave, or is absent from work because he is ill.”

So, they cannot be classed as being in work whilst on maternity leave so cannot qualify, by my reading, for the extra disregard via option 2 or 3 which means the only one left is option 1 being on WTC with the 30 hour element included (as WTC treats you as being in work whilst on maternity leave).

This isn’t something that I look at with any sort of frequency so I’m open to correction!

That is correct.  Para 17 of Schedule 4 to the HB Regs says the disregard applies if:

(a) Reg 20(1)(c) of the WTC Regs applies to the claimant or partner, or
(b) the claimant/partner is in remunerative work and works the required number of hours according to whether they have children or are disabled

You cannot satisfy (b) while on maternity leave but you can satisfy (a).  Councils sometimes “go behind” Reg 20(1)(c) and take their own view as to whether they think the claimant should be getting the element, but I would advise against that, it’s a dangerous game applying someone else’s regs that you aren’t properly familiar with.  I think that Reg 20(1)(c) applies if HMRC says so, unless and until HMRC says different.  If the element is in the WTC assessment then Reg 20(1)(c) applies, irrespective of what the Council thinks about it.

HB Anorak - 17 January 2019 02:02 PM

That is correct.  Para 17 of Schedule 4 to the HB Regs says the disregard applies if:

(a) Reg 20(1)(c) of the WTC Regs applies to the claimant or partner, or
(b) the claimant/partner is in remunerative work and works the required number of hours according to whether they have children or are disabled

You cannot satisfy (b) while on maternity leave but you can satisfy (a).  Councils sometimes “go behind” Reg 20(1)(c) and take their own view as to whether they think the claimant should be getting the element, but I would advise against that, it’s a dangerous game applying someone else’s regs that you aren’t properly familiar with.  I think that Reg 20(1)(c) applies if HMRC says so, unless and until HMRC says different.  If the element is in the WTC assessment then Reg 20(1)(c) applies, irrespective of what the Council thinks about it.

In English???

In English: if you are on maternity leave but your WTC includes the 30-hour element still, HB should disregard £17.10 from your earnings/SMP.