[2024] UKUT 251 (AAC)

Since the other conditions to entitlement to an employment and support allowance are not in dispute, I do not reproduce all of the entitlement conditions here.

Regulation 40 of the ESA Regulations provides, subject to certain exceptions, that a claimant is to be treated as not entitled to an employment and support allowance in any week in which that claimant does work.

Regulation 45 of the ESA Regulations makes provision for ‘exempt work’, which does not make a claimant ineligible for an employment and support allowance.

Regulations 95 and 96 of the ESA Regulations provide (as far as relevant to this case) as follows:

“Earnings of employed earners

95.-(1) Subject to paragraphs (2) and (3), “earnings” means, in the case of employment as an employed earner, any remuneration or profit derived from that employment…

(2)

“Earnings” are not to include-

(a)

subject to paragraph (3), any payment in kind;

…”

Calculation of net earnings of employed earners

96.- (1) For the purposes of regulation 91 (calculation of earnings derived from employed earner’s employment and income other than earnings) the earnings of a claimant derived from employment as an employed earner to be taken into account, subject to paragraph (2), are the claimant’s net earnings.

(2)

There is to be disregarded from a claimant’s net earnings, any sum, where applicable, specified in paragraphs 1 to 12 of Schedule 7 (sums to be disregarded in the calculation of earnings.

(3)

For the purposes of paragraph (1) net earnings are to be calculated by taking into account the gross earnings of the claimant from that employment less-

(a)

any amount deducted from those earnings by way of-

(i)

income tax;

(ii)

primary Class 1 contributions under section 6(1)(a) of the Contributions and Benefits Act;

(b)

one-half of any sum paid by the claimant in respect of a pay period by way of a contribution towards an occupational or personal pension scheme.”