My client's former partner pays £50 a month towards rent.

The council has treated this as a payment of maintenance (presumably under reg 40 (calculation of income other than earnings).

My feeling is that it should be treated as notional income under reg 42(6)(b) as it is a third party payment used for rent.

If the council are correct and it is maintenance, then the disregards in schedule 5 would apply. Client already has the £15 disregard applied to child support maintenance received, but could the payment be subject to the disregad in para 23 of schedule 5 "income in kind"?

Any ideas?

Thanks,

To whom does the ex-partner make this payment: is it to the landlord or to your client? It is only capable of being a Reg 42(6)(b) third party payment if it is made direct to the landlord.

Is the ex-partner still (has s/he ever been) personally liable for the rent as a party to the tenancy agreement? The fact that s/he is no longer living at the property is not relevant if the landlord would still have a right to take legal action against him/her for unpaid rent. In this case you would probably need to show that there was a direct agreement on the point between the landlord and the ex-partner which was the only reason for the payments.

There seems to be a potential overlap between reg 42 (6)(b) and the disregards in schedule 5 para 14 (voluntary payments), from which payments by a former partner are expressly excluded - the old "liable relative" rule. Such payments are logically then maintenance. I don't think there's a chance of the para 23 argument: sub-para (b) expressly excluded payments to a third party for the third party to provide the non-cash benefit (ie, in this case, housing).

Thanks for your reply Ariadne.

The payment is direct to the landlord and is made as part of a court order in the divorce settlement. The former partner has never lived in the property and remains in the former matrimonial home.

I've never dealt with voluntary payments, but presumably, if it's made under a court order, it's not 'voluntary'?

I hadn't really understood para 23 of the schedule, but you've clarified that for me.

So that leaves us with the payment being either maintenance or notional income. Either way there is no disregard and counts. But I'm still unsure of which it is. You suggested maintenance. What is the definition of maintenance?

Thanks again,
Tony

Hi Tony,

As far as I can see, there is no direct definition of "maintenance" for HB/CTB. In simple terms, any monies paid (to the clmt) by a former partner are excluded from being voluntary payments - para 14 (Sch 5). As such, it is must be taken into account (unless otherwise disregarded).

But, "maintenance" payments from a former partner are, generally, subject to a disregard of £15.00 per week where the Family Premium is due - para 47 (Sch 5).

Does this help?

Thanks Kevin,

Is it concievable that the payments could be treated equally EITHER as maintenance, OR as notional income.

If so, then, being as it isn't a cash payment, would it still attract a maintenance disregard and thus should be preferred as maintenace rather than notional income?

For the purpose of my client's case, all questions have been answered, so this is purely a discussion point now and comes back to the subject of the topic: what is maintenace?

Has anyone come across this issue before?

See the definitions in the Social Security (Maintenance Payments and Consequential Amendments) Regulations 1996, in the Sweet and Maxwell blue volume. These I think are actually about child support and are also only setting out what most family lawyers would understand maintenance to be - a payment to support those family members whom the law expects you to support.

By the way, as you said, if ther is more than one maintenance payment, para 47 of Sch 5 aggregates them so you only get one disregard.