Transitional protection “non gainfully” employed earnings classed as earnings

Liononthehill

I am disabled in receipt of pip but not LCWRA I am employed but not gainfully so as my main income is from employment. Due to poor health my employer income has been below the AET in the last 3 assessment periods and was above in the first one. Will they add my self employed income to my earned income? I am really confused as the wording in regulation 56 is “in which the claimant's earned income is less than the amount specified in regulation 99(6)(a) of the Universal Credit Regulations” so does it mean you have just have to earn the amount equal to or above the AET by any means, or is like when the AET is used for work conditionality you can only used employed income?

If I was gainfully self employed or in start up period I would be classed as earring equivalent to the AET.

NedS

The UC system does not consider S/E earnings when considering if earnings are above the AET. This is the way the system has been designed (programmed). I do not have a strong opinion on whether that is the correct interpretation of the legislation, only that is the way the system is currently programmed to behave.

Normally this is not an issue for gainfully self employed people, as the AET is not relevant to them, as they will either be in a S/E start up period or the MIF will apply.

I appreciate that in your situation, you fall between the above scenarios. I have not seen such a case (yet), but I suspect the system will seek to end your transitional protection under Reg 56. What transitional protection(s) do you currently receive, and would ending them result in claim closure (for example, for capital over £16k)?

If that were to happen, you would need to seek to appeal that decision, first by an MR and subsequently at tribunal. I think it would be worth appealing as your income is clearly earned, and if your combined earned income is above the AET then one would think you have a reasonable case. I suspect you (or someone else) would need to test this at tribunal. If you make a strong case in law at MR (or tribunal filings), DWP may concede the case before it gets to tribunal (as they may not want legal precedent).

Liononthehill

Thank you so much for your reply I am sure you right in that they would not count both,  as self employed earnings are not used to calculate the AET . It was the use of the phrase “less than the amount specified” rather than must meet the conditions of AET that I found unclear. 

.I however have a friend who made me aware of this issue of loosing TP that earned above the AET in the first assessment period through self employed earnings only ( also not gainfully self employed) who then lost TP through earning below the AET in 3 consecutive AP’s. I wonder if they can count SE earnings and relate it directly to AET in the first AP but not in future ones?
thanks again for your response I will go to MR and indeeed tribunal if necessary. 

Liononthehill

Sorry I missed you question no my claim would not end I don’t have savings., but my UC claim was significantly less without TP due to losing both my own WTC disability element and having children on MRC dla where their disability element was higher. 

NedS

If they do end your transitional protection, and your combined gross earnings are over the AET then I would challenge that decision. The legislation refers to "earned income". I don't see anything in the legislation that should preclude self-employed earnings from counting so I think you would have reasonable grounds to challenge the decision.

It will be difficult for them to argue that those S/E earnings do not count as "earned income" when they are clearly taking them into account as earned income when calculating your UC award.

Yamor

NedS said:

If they do end your transitional protection, and your combined gross earnings are over the AET then I would challenge that decision. The legislation refers to "earned income". I don't see anything in the legislation that should preclude self-employed earnings from counting so I think you would have reasonable grounds to challenge the decision.

It will be difficult for them to argue that those S/E earnings do not count as "earned income" when they are clearly taking them into account as earned income when calculating your UC award.

I agree with this. Reg 56(3)(b) also (sort of) implies that s/e earnings count for these purposes.

Worth noting that for the AET for the light touch conditionality regime the regs are clear that s/e earnings do not count.