Social Welfare and Pensions Act 2005

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SCHEDULE 2

“Third Schedule — Rules as to Calculation of Means

Section 24 .

PART 1

Definitions

1. In this Schedule—

‘fisherman’ means a person engaged in seafishing as a selfemployed person—

(a) on a fishing boat entered in the Register of Fishing Boats, or

(b) on a fishing boat and in a place in respect of which a fishing licence (within the meaning of section 3 of the Fisheries (Consolidation) Act 1959 ) for fishing for salmon at sea has been issued;

‘gross proceeds derived from the sale of the principal residence’ means—

(a) the agreed sale price of the residence, or

(b) where the claimant or beneficiary purchases alternative accommodation, the difference between the agreed sale price of the former residence and the agreed purchase price of the replacement residence;

‘housing costs’ means rent or repayment of a loan entered into solely for the purpose of defraying money employed in the purchase, repair or essential improvement of the residence in which the person is, for the time being, residing;

‘maintenance grant’ means a grant issued under—

(a) a scheme administered by the Minister for Education and Science under the Local Authorities (Higher Education Grants) Acts 1968 to 1992, or

(b) a scheme administered under the aegis of the Minister for Education and Science and known as the—

(i) Maintenance Grants Scheme for Students attending Post-Leaving Certificate Courses,

(ii) Vocational Education Committees Scholarship Scheme, or

(iii) Third-Level Maintenance Grants Scheme for Trainees;

‘maintenance payments’ means any payment received under or pursuant to any maintenance arrangement that may be prescribed;

‘spouse’ means—

(a) each person of a married couple who are living together, or

(b) a man and woman who are not married to each other but are cohabiting as husband and wife.

PART 2

Unemployment Assistance, Pre-Retirement Allowance, Disability Allowance and Farm Assist

1. In the calculation of the means of a person for the purposes of Chapters 2, 3, 12 and 14 of Part III, account shall be taken of the following:

(1) other than in the circumstances and subject to the conditions and for the periods that may be prescribed, the weekly value of property belonging to the person or to his or her spouse (not being property personally used or enjoyed by the person or his or her spouse or a farm of land leased either by the person or his or her spouse) which is invested or otherwise put to profitable use or is capable of being, but is not, invested or put to profitable use and the weekly value, calculated in accordance with Table 1 to this Schedule, constitutes the weekly means of a person from that property but, in the case of farm assist, no account shall be taken under any other provision of these Rules of any appropriation of the property for the purpose of current expenditure;

(2) all income in cash and any non-cash benefits that may be prescribed which the person or his or her spouse may reasonably expect to receive during the succeeding year, whether as contributions to the expenses of the household or otherwise, but—

(a) excluding the amounts at references 1 to 19 in Table 2 to this Schedule, and

(b) excluding—

(i) in the cases that may be prescribed, any moneys received by way of a maintenance grant,

(ii) any moneys received by way of maintenance payments (including maintenance payments made to or in respect of a qualified child) in so far as those payments do not exceed the annual housing costs actually incurred by the person subject to the maximum amount that may be prescribed, together with one-half of any amount of maintenance payment in excess of the amount disregarded in respect of housing costs actually incurred (if any),

(iii) in the case of unemployment assistance, any moneys, subject to the limit that may be prescribed, received by way of repayment of expenses necessarily incurred in relation to travel and meals while undergoing a course of education, training or development approved by the Minister,

(iv) in the case of—

(I) unemployment assistance and pre-retirement allowance and subject to paragraph (5) all moneys earned by the person in respect of current personal employment under a contract of service,

(II) farm assist and subject to paragraph (8), all moneys earned by the person or his or her spouse in respect of current personal employment under a contract of service,

(v) in the case of unemployment assistance, pre-retirement allowance and farm assist and subject to paragraphs (6), (7) and (8), any moneys earned by the person or his or her spouse from insurable employment of a seasonal nature,

(vi) the amount that may be prescribed of all moneys earned by the person's spouse from insurable employment,

(vii) any moneys, except in so far as they exceed €134 per year, received by the person or by his or her spouse in respect of work as an outworker under a scheme that is, in the opinion of the Minister, charitable in character and purpose,

(viii) in the case of disability allowance, the amount that may be prescribed of earnings from employment or self-employment of a rehabilitative nature,

(ix) in the case of unemployment assistance, pre-retirement allowance and farm assist, all income received under the following schemes:

(I) the Rural Environment Protection Scheme administered by the Minister for Agriculture and Food;

(II) the Special Areas of Conservation Scheme administered by the Minister for Community, Rural and Gaeltacht Affairs,

except in so far as that income exceeds the sum of—

(A) €2,540, plus

(B) one-half of any amount in excess of €2,540 and

(C) any expenses necessarily incurred,

(x) in the case of unemployment assistance and pre-retirement allowance, and subject to paragraph (9), any income derived by a fisherman from any form of self-employment,

(xi) where the person or his or her spouse is engaged on a seasonal basis in the occupation of fishing, one-half of so much of the income derived from that occupation as does not exceed €153 per year and one-third of so much of the income as exceeds €153 per year but does not exceed €381 per year,

(xii) in the case of farm assist, an amount of €1,270 per annum from the harvesting of seaweed;

(3) the yearly value ascertained in the prescribed manner of any advantage accruing to the person or to his or her spouse from—

(a) the use of property (other than a domestic dwelling or farm building owned and occupied, furniture and personal effects) which is personally used or enjoyed by the person or by his or her spouse, and

(b) the leasing by the person or by his or her spouse of a farm of land;

(4) all income and the value of all property of which the person or his or her spouse has directly or indirectly deprived himself or herself in order to qualify for the receipt of unemployment assistance, pre-retirement allowance, disability allowance or farm assist, but where the income or the value of the property has reduced since the date of calculation, the calculation may be revised, subject to the conditions and in the circumstances that may be prescribed but any such regulations shall not cause the income or value of the property taken to be part of the means to be increased;

(5) in the case of a person engaged in employment under a contract of service, the value, ascertained in the prescribed manner of any moneys derived from that employment and the value so calculated constitutes the weekly means of that person from that employment for the purposes of Chapter 2 of Part III;

(6) in the case of a person who makes a claim for unemployment assistance during a period in which he or she is engaged in insurable employment of a seasonal nature, the value, ascertained in the prescribed manner, of any moneys derived from that employment and the value so calculated constitutes the weekly means of that person from that employment for the purposes of Chapter 2 of Part III;

(7) in the case of unemployment assistance and pre-retirement allowance, the value of all moneys derived by his or her spouse from insurable employment of a seasonal nature, ascertained in the prescribed manner, during the period in which his or her spouse is engaged in that employment, and the value so calculated constitutes the weekly means of that person from such employment;

(8) in the case of a farmer or his or her spouse engaged in current personal or seasonal employment, the value, ascertained in the prescribed manner, of any moneys derived from that employment and the value so calculated constitutes the weekly means of that person from that employment;

(9) (a) in the case of a fisherman, the gross income derived from any form of self-employment, or

(b) in the case of a farmer entitled to or in receipt of farm assist, the gross yearly income which the farmer or his or her spouse may reasonably be expected to receive from farming or any other form of self-employment,

less—

(i) any expenses necessarily incurred in carrying on any form of self-employment, and

(ii) where the fisherman or farmer has a qualified child, who normally resides with him or her, an amount of—

(I) €254 per annum in respect of each of the first 2 qualified children, and

(II) €381 per annum in respect of each subsequent qualified child,

calculated at the rate of 70 per cent;

(10) in the case of persons entitled to or in receipt of unemployment assistance who have not attained the age that may be prescribed, the yearly value of any benefit or privilege enjoyed by that person by virtue of residing with a parent or step-parent, and the Minister may prescribe by regulations the manner in which the value of the benefit and privilege may be calculated.

2. (1) Notwithstanding this Schedule and subject to paragraph (2), for the purposes of disability allowance, the gross proceeds derived from the sale of the principal residence of the claimant or beneficiary or, in the case of a married couple who are living together, the spouse of the claimant or beneficiary shall not, subject to the limit and under the conditions and circumstances and for the periods as shall be prescribed, be taken into account in calculating the means of the claimant or beneficiary.

(2) Paragraph (1) shall not apply to any sums arising from the investment or profitable use of the gross proceeds derived from the sale of the principal residence.

3. For the purposes of Rule 1(2) and (10), the income of a person shall, in the absence of other means of ascertaining it, be taken to be the income actually received during the year immediately before the date of calculation.

4. The Minister may by regulations vary—

(a) Rule 1(1) and Table 1 to this Schedule in relation to the calculation of the weekly value of property belonging to a person, and

(b) Rule 1(2) to (10), in the case of farm assist.

PART 3

Old Age (Non-Contributory), Blind, Widow's or Widower's (Non-Contributory), and Orphan's (Non-Contributory) Pensions, One-Parent Family Payment and Carer's Allowance

1. Subject to paragraphs (2) and (3), in calculating the means of a person, account shall be taken of the following—

(1) other than in the circumstances and subject to the conditions and for the periods that may be prescribed, the weekly value of property belonging to the person (not being property personally used or enjoyed by the person or a farm of land leased by him or her) which is invested or is otherwise put to profitable use by the person or which, though capable of investment or profitable use is not invested or put to profitable use and the weekly value, calculated in accordance with Table 1 to this Schedule, constitutes the weekly means of a person from that property but, no account shall be taken under any other provision of these Rules of any appropriation of the property for the purpose of current expenditure;

(2) all income in cash (including, in the case of widow's or widower's (non-contributory) pension, orphan's (non-contributory) pension and one-parent family payment, the net cash value of such non-cash benefits as may be prescribed), and the income received by a qualified child or qualified children that may be prescribed which the person may reasonably expect to receive during the year succeeding the date of calculation, but—

(a) excluding the amounts at references 1 to 19 in Table 2 to this Schedule, and

(b) excluding—

(i) in the case of blind pension or one-parent family payment, any moneys received by way of a maintenance grant,

(ii) in the case of old age (non-contributory) pension, blind pension, widow's or widower's (non-contributory) pension and one-parent family payment, any moneys received by way of maintenance payments (including maintenance payments made to or in respect of a qualified child) in so far as they do not exceed the annual housing costs actually incurred by the person subject to the maximum amount that may be prescribed, together with one-half of any amount of maintenance payment in excess of the amount disregarded in respect of housing costs actually incurred (if any),

(iii) in the case of one-parent family payment, any moneys, subject to the limit that may be prescribed, received by way of repayment of expenses necessarily incurred in relation to travel and meals while undergoing a course of education, training or development approved by the Minister,

(iv) in the case of a blind person, any income arising from a grant or allowance in pursuance of a scheme for promoting the welfare of the blind prepared under section 2 of the Blind Persons Act 1920 ,

(v) in the case of a person who has attained pensionable age, any moneys received under a scheme administered by the Minister for Agriculture and Food and known as the Early Retirement Scheme from Farming operated under Council Regulation (EEC) No. 2079/92 of 30 July 1992³ , or Council Regulation (EC) No. 1257/99 of 17 May 1999⁴ ,

(vi) for the purposes of old age (non-contributory) pension and widow's and widower's (non-contributory) pension, any moneys received in respect of rent from a person who resides with the claimant or beneficiary and but for the residence of the person the claimant or beneficiary would reside alone,

(vii) any sums arising from the investment or profitable use of property (not being property personally used or enjoyed by the person or a farm of land leased by him or her),

(viii) in the case of old age (non-contributory) pension, widow's or widower's (non-contributory) pension, orphan's (non-contributory) pension, one-parent family payment or carer's allowance, any moneys, except in so far as they exceed €67 per year, received by the person in respect of employment as an outworker under a scheme that is, in the opinion of the Minister, charitable in character and purpose,

(ix) in the case of a recipient of one-parent family payment, subject to paragraph (4), any moneys received by way of earnings (including wages and profit from any form of self-employment),

(x) in the case of a blind person, his or her earnings (including wages and profit from any form of self-employment) other than employment of a rehabilitative nature, except and in so far as the annual amount of those earnings is calculated to exceed an amount made up as follows—

€400, plus €265 if the person's spouse is living with or is wholly or mainly maintained by him or her or, being a single person, widow or widower, is maintaining wholly or mainly a person over the age of 16 years having the care of one or more than one qualified child who normally resides or reside with the person, plus €133 for each qualified child normally residing with the person of whom account has not already been taken in accordance with this paragraph in calculating the means of another person,

(xi) in the case of a blind person, the amount that may be prescribed of his or her earnings from employment of a rehabilitative nature,

(xii) in the case of a person who is in receipt of old age (non-contributory) pension, orphan's (non-contributory) pension or carer's allowance and who has a qualified child who normally resides with him or her, his or her earnings (including wages and profit from any form of self-employment), except and in so far as the annual amount of those earnings is calculated to exceed €133 for each such child of whom account has not already been taken in accordance with this paragraph in calculating the means of another person,

(xiii) in the case of old age (non-contributory) pension, an amount of €2,540 together with one-half of any amount in excess of €2,540 received under the following schemes:

(I) the Rural Environment Protection Scheme administered by the Minister for Agriculture and Food;

(II) the Special Areas of Conservation Scheme administered by the Minister for Community, Rural and Gaeltacht Affairs,

and that income shall, in the absence of other means for ascertaining it, be taken to be that actually received during the year immediately before the date of calculation but where that income is attributable to a period before the year immediately preceding the date of calculation but is received in a subsequent year, it shall be regarded for the purposes of this paragraph as having been received in the year to which it is attributable;

(3) the yearly value of any advantage accruing to the person from—

(a) the use or enjoyment of property (other than a domestic dwelling or a farm building owned and occupied, furniture and personal effects) which is personally used or enjoyed by the person, and

(b) a farm of land leased by the person;

(4) (a) subject to subparagraph (b), in the case of a recipient of one-parent family payment who has earnings (including wages and profit from any form of self-employment), the gross weekly earnings, constitutes the weekly means of that parent from earnings for the purposes of Chapter 9 of Part III,

(b) in calculating the gross weekly earnings of a recipient of one-parent family payment, for the purposes of subparagraph (a), an amount of €146.50 together with half the gross weekly earnings in excess of that amount shall be disregarded;

(5) in the case of carer's allowance, in calculating the weekly means of a carer who is not one of a couple (other than means derived from a social security payment payable under the legislation of another state), that amount that may be prescribed shall be disregarded;

(6) in the case of carer's allowance, the amount that the Minister determines that the relevant person (as defined in section 163) could reasonably be expected to contribute to the support of the carer but in determining that amount, no account shall be taken of any sums received by the relevant person under Part II, III or IV.

2. (1) Subject to paragraph (2), if it appears that any person has, whether before or after the commencement of this Act, directly or indirectly deprived himself or herself of any income or property in order to qualify himself or herself for the receipt of the pension or allowance in question, or for the receipt of the pension or allowance at a higher rate than that to which he or she would otherwise be entitled, that income or the value of that property shall for the purposes of these Rules be taken to be part of the means of that person.

(2) Paragraph (1) shall not apply to any assignment—

(a) which is an assignment to a child or children of the assignor, and

(b) which is an assignment of property consisting of a farm of land (together with or without the stock and chattels thereon) and of which the assignor is the owner and the occupier or the occupier only.

(3) In the case of a person to whom paragraph (1) applies, where the income or the value of the property taken to be part of his or her means for the purposes of that paragraph has reduced since the date of calculation, the calculation may be revised, subject to the conditions and in the circumstances that may be prescribed, but regulations made under this paragraph shall not cause the income or the value of the property taken to be part of his or her means to be increased.

(4) For the purposes of this Rule, ‘assignment’ includes any form of conveyance, transfer or other transaction by which a person parts with the ownership or possession of property.

3. (1) Notwithstanding this Schedule and subject to paragraph (2), for the purposes of—

(a) old age (non-contributory) pension or blind pension, or

(b) widow's (non-contributory) pension or widower's (non-contributory) pension, or one-parent family payment, where the claimant or beneficiary has attained pensionable age,

the gross proceeds derived from the sale of the principal residence of the claimant or beneficiary or, in the case of a married couple who are living together, the spouse of the claimant or beneficiary where the spouse has attained pensionable age, shall not, subject to the limit and under the conditions and circumstances and for the periods that shall be prescribed, be taken into account in calculating the means of the claimant, beneficiary or pensioner.

(2) Paragraph (1) shall not apply to any sums arising from the investment or profitable use of the gross proceeds derived from the sale of the principal residence.

4. (1) In the case of an old age (non-contributory) pension, blind pension or a carer's allowance, the following apply when calculating the means of a person who is one of a couple living together:

(a) the means of the person shall be taken to be one-half of the total means of the couple;

(b) the person is deemed to be entitled to one-half of all property to which the person or the other member of the couple is entitled or to which the person and the other member of the couple are jointly entitled;

(c) for the purposes of this Rule, the means of each member of the couple shall first be determined in accordance with these Rules (each being regarded as an applicant for a pension or a pension at a higher rate or carer's allowance, as the case may be) and the total means shall be the sum of the means of each member as so determined;

(d) where one member of the couple dies, nothing which was reckoned for the purposes of pension, or would (if the deceased member had been entitled to receive any pension) have been so reckoned, as means of the deceased member shall be so reckoned as means of the surviving member for the purpose of reducing the pension of the surviving member if any payment in respect of that pension was made before the death of the deceased member or becomes payable in respect of a period before or part of which was before that death.

(2) In the case of carer's allowance, in calculating the means of the other member of the couple for the purposes of paragraph (1) the following shall be disregarded—

(a) an amount, not exceeding the maximum amount set out in column (2), reference 3 of Part I of the Second Schedule, of a social security payment payable under the legislation of another state, and

(b) an amount, not exceeding half the amount set out in column (4), reference 3 of Part I of the Second Schedule, of a social security payment payable under the legislation of another state in respect of each qualified child for which an increase is granted under section 165(1).

(3) In the case of carer's allowance, in calculating the weekly means of the couple (other than means derived from a social security payment payable under the legislation of another state), the amount that may be prescribed shall be disregarded.

(4) In this Rule ‘couple’ means a married couple who are living together or a man and woman who are not married to each other but are cohabiting as husband and wife.

(5) In calculating the means of a person who is one of a married couple living apart from his or her spouse, any sum paid by him or her to his or her spouse under a separation order shall be deducted in calculating his or her means.

5. (1) Notwithstanding these Rules, where—

(a) an old age (non-contributory) pension, blind pension, widow's (non-contributory) pension, widower's (non-contributory) pension, orphan's (non-contributory) pension, one-parent family payment or carer's allowance is in course of payment to or in respect of a person or the spouse of the person or both of them, and

(b) a pension or pensions (in this Rule referred to as ‘the other pension'), not being a pension or pensions mentioned in paragraph (a), is in course of payment to or in respect of the person or the spouse of the person or both of them,

in calculating the means of the person or of the spouse or of both of them for the purposes of old age (non-contributory) pension, blind pension, widow's (non-contributory) pension, widower's (non-contributory) pension, orphan's (non-contributory) pension, one-parent family payment or carer's allowance (as the case may require), any portion of the amount of an increase in the other pension or the aggregate increase, where more than one increase in the other pension has occurred, which, if it were reckoned as means, would result in a reduction in the amount of the pension or combined pensions (as the case may be) which would be greater than the amount by which the other pension has been increased, shall not be reckoned as means.

(2) Any amount excluded from the calculation of means in accordance with reference 16 in Table 2 shall be subject to Rule 5(1).

6. Notwithstanding this Schedule, the amount of any allowance, special allowance, dependent's allowance, disability pension or wound pension under the Army Pensions Acts 1923 to 1980, or pension under the Military Service (Pensions) Acts 1924 to 1964, arising out of service in the period commencing on 23 April 1916 and ending on 30 September 1923, or pension under the Connaught Rangers (Pensions) Acts 1936 to 1964, shall be disregarded in the calculation of means for the purposes of Chapters 4 to 10 of Part III.

7. The Minister may by regulations vary Rule 1(1) and Table 1 to this Schedule in relation to the calculation of the weekly value of property belonging to a person.

PART 4

Supplementary Welfare Allowance

1. In calculating the weekly means of a person for supplementary welfare allowance account shall be taken of the following—

(1) the value of any property belonging to the person (not being property personally used or enjoyed by the person or a farm of land leased by him or her) which is invested or is otherwise put to profitable use or which, though capable of investment or profitable use, is not invested or put to profitable use, the yearly value of the first €520 of the property being taken to be one-twentieth part of the capital value and the yearly value of so much of the capital value of the property as exceeds the sum of €520 being taken to be one-tenth part of the capital value; and the weekly value of the property being calculated as one fifty-second part of the yearly value so calculated;

(2) all income in cash, including the net cash value of any non-cash earnings derived from personal exertions and the noncash benefits that may be prescribed and the actual or estimated amount of any household income, whether as contributions to the expenses of the household or otherwise, but—

(a) excluding the amounts at references 2 to 11 and 19 in Table 2 to this Schedule, and

(b) excluding—

(i) in the cases that may be prescribed, any moneys received by way of a maintenance grant,

(ii) any income arising from a grant or allowance in pursuance of a scheme for promoting the welfare of the blind prepared under section 2 of the Blind Persons Act 1920 ,

(iii) any sums arising from the investment or profitable use of property (not being property personally used or enjoyed by such person or a farm of land leased by the person),

(iv) the amount that may be prescribed of earnings from employment of a rehabilitative nature,

(v) in the case of a person in receipt of a supplement under section 179 towards the amount of mortgage interest or rent payable by him or her in respect of his or her residence:

(I) €60, or any higher amount that may be prescribed, from the amount of income derived when gross earnings from such employment that may be prescribed, have been reduced by the aggregate of—

(A) any allowable contribution referred to in Regulations 41 and 42 of the Income Tax (Employments) (Consolidated) Regulations 2001 ( S.I. No. 559 of 2001 ),

(B) any amount deducted from reckonable earnings under section 10 and regulations made under section 11,

(C) any amount deducted from reckonable earnings under section 5 of the Health Contributions Act 1979 , and

(D) an amount equal to the amount of reduction, if any, in the rate of unemployment assistance or one-parent family payment under Part III consequent on receipt of those earnings from employment;

(II) the amount by which carer's allowance exceeds the amount of supplementary welfare allowance set out in column (3) at reference 10 of the Fourth Schedule, in the case of a claimant, or his or her spouse, who is in receipt of carer's allowance under Part III,

(III) the amount by which carer's allowance exceeds the amount of supplementary welfare allowance set out in column (2) at reference 10 of the Fourth Schedule, in the case of a claimant who, not being one of a couple, is in receipt of carer's allowance under Part III,

(IV) the amount that may be prescribed from attendance at any training course that may be prescribed;

(3) the value of any advantage accruing to the person from—

(a) the use or enjoyment of property (other than a domestic dwelling or a farm building owned and occupied, or furniture and personal effects) which is personally used or enjoyed by him or her, and

(b) the leasing by the person of a farm of land;

(4) all income and the value of all property of which the person has directly or indirectly deprived himself or herself in order to qualify himself or herself for the receipt of supplementary welfare allowance;

(5) the value of any benefit or privilege enjoyed by the person.

2. The Minister may by regulations vary—

(a) Rule 1(1) in relation to the calculation of the yearly value of property belonging to a person, and

(b) Rule 1(2), (3), (4) and (5).

Table 1

Table 2

³ OJ No. L215, 30.7.92, p.91

⁴ OJ No. L160, 26.6.99, p.80