Regulation 16 Circumstances in which a person is to be treated as being or not being a member of the householdI1

England, Wales and Scotland

(1)

Subject to paragraphs (2) to (5), the claimant and any partner and, where the claimant or his partner is treated as responsible under regulation 15 (circumstances in which a person is to be treated as responsible or not responsible for another) for a child or young person, that child or young person and any child of that child or young person shall be treated as members of the same household F1notwithstanding that any of them F2is temporarily living away from the other members of his family.

F3(2)

Paragraph (1) shall not apply to a person who is living away from the other members of his family where—

(a)

that person does not intend to resume living with the other members of his family; or

(b)

his absence from the other members of his family is likely to exceed 52 weeks, unless there are exceptional circumstances (for example the person is in hospital or otherwise has no control over the length of his absence), and the absence is unlikely to be substantially more than 52 weeks.

(3)

Paragraph (1) shall not apply in respect of any member of a couple or of a polygamous marriage where—

(a)

one, both or all of them are patients detained in a hospital provided under section 4 of the National Health Service Act 1977 F4 (F5high security psychiatric services) or F6section 102 of the National Health Service (Scotland) Act 1978 (state hospitals); or

F7(b)

one, both or all of them are—

(i)

detained in custody pending trial or sentence upon conviction or under a sentence imposed by a court; or

(ii)

on temporary release in accordance with the provisions of ~~F8the Prison Act 1952 or~~ the Prisons (Scotland) Act 1989;

F9(c)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d)

the claimant is abroad and does not satisfy the conditions of regulation 4 (temporary absence from Britain); or

(e)

one of them is permanently F10residing in a care home, an Abbeyfield Home or an independent hospital.

(4)

A child or young person shall not be treated as a member of the claimant's household where he is—

F11(a)

placed with the claimant or his partner by a local authority under F12section 22C(2) of the Children Act 1989 or by a voluntary organisation under section 59(1)(a) of that Act; or

(F13aa)

placed with the claimant or his partner by a local authority under section 81(2) of the Social Services and Well-being (Wales) Act 2014; or

(b)

placed with the claimant or his partner prior to adoption; or

(c)

placed for adoption with the claimant or his partner pursuant to a decision under the Adoption Agencies Regulations 1983 F14 or F15the Adoption Agencies (Scotland) Regulations 2009.

(5)

Subject to paragraph (6), paragraph (1) shall not apply to a child or young person who is not living with the claimant F16and who—

(a)

F17in a case which does not fall within sub-paragraph (aa), has been continuously absent from Great Britain for a period of more than four weeks commencing—

(i)

F18subject to paragraph (5A), where he went abroad before the date of claim for income support, with that date;

(ii)

in any other case, F19on the day which immediately follows the day on which he went abroad; or

F20(aa)

where regulation 4(3) or paragraph 11A or 12A of Schedule 7 (temporary absence abroad for the treatment of a child or young person) applies, has been continuously absent from Great Britain for a period of more than 8 weeks, that period of 8 weeks commencing—

(i)

F21subject to paragraph (5A), where he went abroad before the date of the claim for income support, on the date of that claim;

(ii)

in any other case, on the day which immediately follows the day on which he went abroad; or

(b)

has been an in-patient or in F22accommodation F23... for a continuous period of more than 12 weeks commencing—

(i)

F24subject to paragraph (5A), where he became an in-patient or, as the case may be, entered that accommodation before the date of the claim for income support, with that date; or

(ii)

in any other case, with the date on which he became an in-patient or entered that accommodation,

and, in either case, has not been in regular contact with either the claimant or any member of the claimant's household; or

F25(c)

is being looked after by a local authority under a relevant enactment; or

(d)

has been placed with a person other than the claimant prior to adoption; or

(e)

has been placed for adoption pursuant to a decision under the Adoption Agencies Regulations 1983 or F26the Adoption Agencies (Scotland) Regulations 2009; or

(f)

is detained in custody pending trial or sentence upon conviction or under a sentence imposed by a court.

F27(5A)

Sub-paragraphs (a)(i), (aa)(i) and (b)(i) of paragraph (5) shall not apply in a case where immediately before the date of claim for income support the claimant was entitled to an income-based jobseeker’s allowance.

(6)

A child or young person to whom any of the circumstances mentioned in sub-paragraphs (c) or (f) of paragraph (5) applies shall be treated as being a member of the claimant's household only for that part of any benefit week where that child or young person lives with the claimant.

(7)

Where a child or young person for the purposes of attending the educational establishment at which he is receiving relevant education is living with the claimant or his partner and neither one is treated as responsible for that child or young person that child or young person shall be treated as being a member of the household of the person treated as responsible for him and shall not be treated as a member of the claimant's household.

(8)

In this regulation—

F28(za)

“accommodation” means accommodation provided by a local authority in a home owned or managed by that local authority—

(i)

under sections 21 to 24 of the National Assistance Act 1948 (provision of accommodation),

(ii)

in Scotland, under section 13B or 59 of the Social Work (Scotland) Act 1968 (provision of residential or other establishment), F29...

(iii)

under section 25 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (care and support services etc.), F30...

(F31iv)

under section 18 or 19 of the Care Act 2014 (duty and power to meet needs for care and support), F32 or

(v)

under section 35 or 36 of the Social Services and Well-being (Wales) Act 2014 (duty and power to meet care and support needs of an adult),

where the accommodation is provided for a person whose stay in that accommodation has become other than temporary;

(F33a)

“relevant enactment” means the Army Act 1955, the Social Work (Scotland) Act 1968, the Matrimonial Causes Act 1973, F34the Adoption and Children (Scotland) Act 2007, the Family Law Act 1986 F35, the Children Act 1989 and the Social Services and Well-being (Wales) Act 2014.

(b)

“voluntary organisation” has the meaning assigned to it in the F36Children Act 1989 or, in Scotland, the Social Work (Scotland) Act 1968.

Annotations

Textual amendments

F1: Words in reg. 16(1) substituted (11.4.1988) by The Income Support (General) Amendment Regulations 1988 (S.I. 1988/663), regs. 1(1), 8(a)
F2: Words in reg. 16(1) substituted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) (No. 4) Regulations 1993 (S.I. 1993/2119), regs. 1(1)(a), 6(2)
F3: Reg. 16(2) substituted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) (No. 4) Regulations 1993 (S.I. 1993/2119), regs. 1(1)(a), 6(3)
F4: 1977 c. 49; section 4 was amended by section 148, Schedule 4, paragraph 47 of the Mental Health Act 1983 (c. 20).
F5: Words in reg. 16(3)(a) substituted (2.10.2006) by The Social Security (Miscellaneous Amendments) (No. 4) Regulations 2006 (S.I. 2006/2378), regs. 1(3), 5(2)
F6: Words in reg. 16(3)(a) substituted (E.W.) (5.10.2005) by The Mental Health (Care and Treatment) (Scotland) Act 2003 (Consequential Provisions) Order 2005 (S.I. 2005/2078), art. 1(1), Sch. 2 para. 3(3); and (S.) (5.10.2005) by The Mental Health (Care and Treatment) (Scotland) Act 2003 (Modification of Subordinate Legislation) Order 2005 (S.S.I. 2005/445), arts. 1, 2, sch. para. 3(2)
F7: Reg. 16(3)(b) substituted (with effect in accordance with reg. 1(6) of the amending S.I.) by The Income-related Benefits Schemes and Social Fund (Miscellaneous Amendments) Regulations 1996 (S.I. 1996/1944), regs. 1(1)(a), 6(5) (with reg. 13)
F8: Words in reg. 16(3)(b)(ii) omitted (temp.) (8.4.2020) by virtue of The Social Security (Coronavirus) (Prisoners) Regulations 2020 (S.I. 2020/409), regs. 1, 3(1)(a) (with reg. 6(2)); (as amended (12.5.2021) by The Social Security (Coronavirus) (Miscellaneous Amendments) Regulations 2021 (S.I. 2021/476), regs. 1, 4(6))
F9: Reg. 16(3)(c) omitted (1.4.1993) by virtue of The Social Security Benefits (Amendments Consequential Upon the Introduction of Community Care) Regulations 1992 (S.I. 1992/3147), reg. 1(1), Sch. 1 para. 1
F10: Words in reg. 16(3)(e) substituted (24.10.2005) by The Social Security (Care Homes and Independent Hospitals) Regulations 2005 (S.I. 2005/2687), reg. 1, Sch. 1 para. 3(a)
F11: Reg. 16(4)(a)(b) substituted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income Support (General) Amendment Regulations 1992 (S.I. 1992/468), reg. 1(1), Sch. para. 3(a) (with Sch. para. 11)
F12: Words in reg. 16(4)(a) substituted (3.11.2017) by The Social Services and Well-being (Wales) Act 2014 and the Regulation and Inspection of Social Care (Wales) Act 2016 (Consequential Amendments) Order 2017 (S.I. 2017/901), arts. 1, 20(2)
F13: Reg. 16(4)(aa) inserted (3.11.2017) by The Social Services and Well-being (Wales) Act 2014 and the Regulation and Inspection of Social Care (Wales) Act 2016 (Consequential Amendments) Order 2017 (S.I. 2017/901), arts. 1, 2(3)(a)
F14: S.I. 1983/1964.
F15: Words in reg. 16(4)(c) substituted (15.7.2011) by The Adoption and Children (Scotland) Act 2007 (Consequential Modifications) Order 2011 (S.I. 2011/1740), art. 1(2), Sch. 1 para. 9(2)(a)
F16: Words in reg. 16(5) substituted (11.4.1988) by The Income Support (General) Amendment Regulations 1988 (S.I. 1988/663), regs. 1(1), 8(d)(i)
F17: Words in reg. 16(5)(a) inserted (with effect in accordance with reg. 1(2)(3) of the amending S.I.) by The Income Support (General) Amendment Regulations 1990 (S.I. 1990/547), regs. 1(1)(b), 7(a)
F18: Words in reg. 16(5)(a)(i) inserted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income Support (General) (Jobseeker’s Allowance Consequential Amendments) Regulations 1996 (S.I. 1996/206), regs. 1(1), 8(2)
F19: Words in reg. 16(5)(a) substituted (with effect in accordance with reg. 1(2)(3) of the amending S.I.) by The Income Support (General) Amendment Regulations 1990 (S.I. 1990/547), regs. 1(1)(b), 7(a)
F20: Reg. 16(5)(aa) inserted (with effect in accordance with reg. 1(2)(3) of the amending S.I.) by The Income Support (General) Amendment Regulations 1990 (S.I. 1990/547), regs. 1(1)(b), 7(b)
F21: Words in reg. 16(5)(aa)(i) inserted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income Support (General) (Jobseeker’s Allowance Consequential Amendments) Regulations 1996 (S.I. 1996/206), regs. 1(1), 8(2)
F22: Words in reg. 16(5)(b) substituted (11.4.1988) by The Income Support (General) Amendment Regulations 1988 (S.I. 1988/663), regs. 1(1), 8(d)(ii)
F23: Words in reg. 16(5)(b) omitted (24.10.2005) by virtue of The Social Security (Care Homes and Independent Hospitals) Regulations 2005 (S.I. 2005/2687), reg. 1, Sch. 1 para. 3(b)
F24: Words in reg. 16(5)(b)(i) inserted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income Support (General) (Jobseeker’s Allowance Consequential Amendments) Regulations 1996 (S.I. 1996/206), regs. 1(1), 8(2)
F25: Reg. 16(5)(c)(d) substituted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income Support (General) Amendment Regulations 1992 (S.I. 1992/468), reg. 1(1), Sch. para. 3(b) (with Sch. para. 11)
F26: Words in reg. 16(5)(e) substituted (15.7.2011) by The Adoption and Children (Scotland) Act 2007 (Consequential Modifications) Order 2011 (S.I. 2011/1740), art. 1(2), Sch. 1 para. 9(2)(a)
F27: Reg. 16(5A) inserted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income Support (General) (Jobseeker’s Allowance Consequential Amendments) Regulations 1996 (S.I. 1996/206), regs. 1(1), 8(3)
F28: Reg. 16(8)(za) inserted (24.10.2005) by The Social Security (Care Homes and Independent Hospitals) Regulations 2005 (S.I. 2005/2687), reg. 1, Sch. 1 para. 3(c)
F29: Word in reg. 16(8)(za)(ii) omitted (1.4.2015) by virtue of The Care Act 2014 (Consequential Amendments) (Secondary Legislation) Order 2015 (S.I. 2015/643), art. 1(2), Sch. para. 5(2)(a) (with art. 4)
F30: Word in reg. 16(8)(za)(iii) omitted (3.11.2017) by virtue of The Social Services and Well-being (Wales) Act 2014 and the Regulation and Inspection of Social Care (Wales) Act 2016 (Consequential Amendments) Order 2017 (S.I. 2017/901), arts. 1, 2(3)(b)(i)(aa)
F31: Reg. 16(8)(za)(iv) inserted (1.4.2015) by The Care Act 2014 (Consequential Amendments) (Secondary Legislation) Order 2015 (S.I. 2015/643), art. 1(2), Sch. para. 5(2)(b) (with art. 4)
F32: Reg. 16(8)(za)(v) and word inserted (3.11.2017) by The Social Services and Well-being (Wales) Act 2014 and the Regulation and Inspection of Social Care (Wales) Act 2016 (Consequential Amendments) Order 2017 (S.I. 2017/901), arts. 1, 2(3)(b)(i)(bb)
F33: Reg. 16(8)(a) substituted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income Support (General) Amendment Regulations 1992 (S.I. 1992/468), reg. 1(1), Sch. para. 3(c)(i) (with Sch. para. 11)
F34: Words in reg. 16(8)(a) substituted (15.7.2011) by The Adoption and Children (Scotland) Act 2007 (Consequential Modifications) Order 2011 (S.I. 2011/1740), art. 1(2), Sch. 1 para. 9(2)(b)
F35: Words in reg. 16(8)(a) substituted (3.11.2017) by The Social Services and Well-being (Wales) Act 2014 and the Regulation and Inspection of Social Care (Wales) Act 2016 (Consequential Amendments) Order 2017 (S.I. 2017/901), arts. 1, 2(3)(b)(ii)
F36: Words in reg. 16(8)(b) substituted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income Support (General) Amendment Regulations 1992 (S.I. 1992/468), reg. 1(1), Sch. para. 3(c)(ii) (with Sch. para. 11)

Commencement

I1: Reg. 16 in force at 11.4.1988, see reg. 1

Notes on the whole SI

Textual amendments

F1: 1986 c. 50; section 84(1) is an interpretation provision and is cited because of the meanings assigned to the words “prescribed” and “regulations”.
F2: 1975 c. 14; section 114 is applied by section 52(3)(b) of the Social Security Act 1986 (c. 50); section 166(3A) is inserted by section 62 of that Act and section 166(1) to (3A) is applied by section 83(1) of that Act.