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The Child Benefit (General) Regulations 1976 (revoked)

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Statutory Instruments

1976 No. 965

Social Security

The Child Benefit (General) Regulations 1976

Made

18th June 1976

Laid before Parliament

28th June 1976

Coming into Operation

8th August 1976

The Secretary of State for Social Services, in exercise of the powers conferred upon him by sections 2, 3, 9(2)(a), 17(5) and (6), 20(1) and (2)(c) and 24 of, and paragraphs 1 to 4 of Schedule 1 and paragraph 6 of Schedule 2 to, the Child Benefit Act 1975 M1, and of all other powers enabling him in that behalf, hereby makes the following regulations:—

Marginal Citations

PART IE+W+SGeneral

Citation, commencement and interpretationE+W+S

1.—(1) These regulations may be cited as the Child Benefit (General) Regulations 1976 and shall come into operation on 8th August 1976.

(2) In these regulations, unless the context otherwise requires—

“the Act” means the Child Benefit Act 1975;

“the Social Security Act” means the Social Security Act 1975 M2;

“the Taxes Act” means the Income and Corporation Taxes Act 1970 M3,

[F1"advanced education" means full-time education for the purposes of—

(a)

a course in preparation for a degree, a diploma of higher education, a higher national diploma, a higher national diploma of the Business & Technician Education Council or the Scottish Vocational Education Council or a teaching qualification; or

(b)

any other course which is of a standard above ordinary national diploma, a national diploma of the Business & Technician Education Council or a national certificate of the Scottish Vocational Education Council, a general certificate of education (advanced level), a Scottish certificate of education (higher grade) or a Scottish certificate of sixth year studies;]

“benefit” means child benefit under the Act;

“the Department” means [F2the Department of Social Security];

“[F1full-time education” means—

(a)

full-time education by attendance at a recognised educational establishment; or

(b)

full-time education, elsewhere than at a recognised educational establishment, where the education is recognised by the Secretary of State under section 2 of the Act; or

(c)

education treated as full-time under regulation 5;]

[F3 “remunerative work” means work of not less than 24 hours a week—

(a)

in respect of which payment is made; or

(b)

which is done in expectation of payment;

“youth training scheme” means—

(a)

arrangements made under section 2 of the Employment and Training Act 1973 (functions of the Secretary of State);

(b)

arrangements made by the Secretary of State for persons enlisted in Her Majesty’s forces for any special term of service specified in regulations made under section 2 of the Armed Forces Act 1966 (power of Defence Council to make regulations as to engagement of persons in regular forces); or

(c)

for the purposes of the application of Council Regulation (EEC) No. 1408/71, any corresponding provisions operated in another member State, [F4or section 2 of the Enterprise and New Towns (Scotland) Act 1990]

for purposes which include the training of persons who, at the beginning of their training, are under the age of 18.]

and other expressions have the same meanings as in the Act.

(3) References in these regulations to any condition being satisfied or any facts existing in a week shall, unless they relate to paragraph 1 of Schedule 1 to the Act (children in detention, care etc.) be construed as references to the condition being satisfied or the facts existing at the beginning of that week.

(4) Unless the context otherwise requires, any reference in these regulations to—

(a)a numbered regulation is a reference to the regulation bearing that number in these regulations and any reference in a regulation to a numbered paragraph is a reference to the paragraph of that regulation bearing that number;

(b)any provision made by or contained in any enactment or instrument shall be construed as a reference to that provision as amended or extended by any enactment or instrument and as including a reference to any provision which may re-enact or replace it, with or without modification.

(5) The rules for the construction of Acts of Parliament contained in the Interpretation Act 1889 M4 shall apply for the purposes of the interpretation of these regulations as they apply for the purposes of the interpretation of an Act of Parliament.

Textual Amendments

Marginal Citations

Special provisions as to contributions and expenditure in respect of a childE+W+S

2.—(1) Where two or more persons are contributing to the cost of providing for the same child and the aggregate weekly amount of their contributions is, but the weekly amount of each of their individual contributions is not, of an amount not less than the weekly rate of child benefit which would be payable in respect of that child had the aggregate weekly amount of their contributions been contributed by one only of them, the aggregate weekly amount of their contributions shall be treated as having been [F5contributed] by that one of them as they shall by agreement nominate in writing or, in default of such agreement, by that one of them as the Secretary of State may, in his discretion, determine.

(2) Where pursuant to a nomination or determination under paragraph (1) a person is awarded benefit in respect of a child, the nomination or determination shall cease to have effect in the week following that in which benefit was awarded to that person; and accordingly that person shall himself be required to satisfy the requirement in section 3(1)(b) of the Act, namely, that he is contributing to the cost of providing for the child at a weekly rate which is not less than the weekly rate of benefit payable in respect of the child.

(3) Where spouses are residing together a contribution made or expenditure incurred by one of them in respect of a child shall if they so agree, or in default of such agreement if the Secretary of State in his discretion so determines, be treated as made or incurred by the other.

Textual Amendments

Child in residential accommodation in prescribed circumstancesE+W+S

3.  The prescribed circumstances for the purposes of section 3(3)(c) of the Act (subject to section 3(4) of the Act a day of absence of a child from a person to be disregarded for the purposes of section 3(2) if it is due solely to the child's being, in prescribed circumstances, in residential accommodation pursuant to arrangements made under [F6paragraph 2 of Schedule 8 to the National Health Service Act 1977, the Children Act 1989 or section 37 of the National Health Service (Scotland) Act 1978) are any circumstances in which a child—

(a) who has attained the age of eighteen is in residential accommodation pursuant to arrangements made under the said paragraph 2 or the said section 37; or

(b) is in residential accommodation pursuant to arrangements made under section 17(1) of the Children Act 1989 (provision of services for children in need) and is a child to whom—

(i)section 17(10)(b) of the Chidren Act 1989 (impairment of health or development) applies because his health is likely to be significantly impaired, or further impaired, without the provision of services for him; or

(ii)section 17(10)(c) of the Children Act 1989 (disability) applies.]

Textual Amendments

F6Words in reg. 3 substituted (coming into force in accordance with reg. 1(1) of the amending S.I.) by The Child Benefit (General) Amendment Regulations 1991 (S.I. 1991/2105), regs. 1(1), 2

Days of absence to be disregarded in determining whether a child is living with a personE+W+S

4.—(1) The prescribed number of days under section 3(4) of the Act (number of days that may be disregarded by virtue of section 3(3) (b) or (c) of the Act in the case of any child not to exceed such number as may be prescribed unless the person claiming to be responsible for the child regularly incurs expenditure in respect of him) is 84 consecutive days calculated in accordance with paragraph (2).

(2) Two or more distinct relevant periods separated by one or more intervals each not exceeding 28 days, shall be treated as a continuous period equal in duration to the total of such distinct periods and ending on the last day of the latter or last of such periods.

(3) In paragraph (2) “relevant periods” means periods to which section 3(3)(b) of the Act (day of absence of a child from a person due solely to the child's undergoing medical or other treatment as an in-patient in a hospital or similar institution to be disregarded in determining whether that child is living with that person) applies; also periods to which section 3(3)(c) of the Act (day of absence of a child from a person due solely to the child's being in residential accommodation pursuant to arrangements made under certain enactments to be disregarded in determining whether that child is living with that person) applies.

[F7Circumstances in which education is to be treated as full-time educationE+W+S

5.—(1) For the purposes of the Act the education which is specified in paragraph (2) shall be treated as full-time education.

(2) The education referred to in paragraph (1) is education received by a person attending a course of education at a recognised educational establishment and in the pursuit of that course, the time spent receiving instruction or tuition, undertaking supervised study, examination or practical work or taking part in any exercise, experiment or project for which provision is made in the curriculum of the course, exceeds 12 hours per week, so however that in calculating the time spent in pursuit of the course, no account shall be taken of time occupied by meal breaks or spent on unsupervised study, whether undertaken on or off the premises of the educational establishment.]

Textual Amendments

Interruption of full-time educationE+W+S

6.—[F8(1)] [F9[F10Subject to paragraph (2)] ,] in determining for the purposes of section 2(1)(b) of the Act (persons aged 16 but under 19 who are to be treated as children) whether a person is receiving full-time education [F9not being advanced education], no account shall be taken of a period (whether beginning before or after the person concerned attains age 16) of up to 6 months of any interruption to the extent to which it is accepted that the interruption is attributable to a cause which is reasonable in the particular circumstances of the case; and where the interruption or its continuance is attributable to the illness or disability of mind or body of the person concerned, the period of 6 months may be extended for such further period as is accepted as being reasonable in the particular circumstances of the case.

[F11(2) The provisions of paragraph (1) shall not apply to any period of interruption of a person's full-time education which is likely to be followed immediately or which is followed immediately by a period during which:-

(a)[F12provision is made for the training of that person, and for an allowance to be payable to that person, under the youth training scheme; or]

(b)he is receiving education by virtue of his employment or of any office held by him.]

Textual Amendments

F8Reg. 6(1): reg. 6 renumbered as reg. 6(1) (3.10.1977) by The Child Benefit (General) Amendment Regulations 1977 (S.I. 1977/534), regs. 1, 2(2)(b)

F11Reg. 6(2) substituted for reg. 6(2)(3) (24.11.1980) by The Child Benefit (General) Amendment Regulations 1980 (S.I. 1980/1045), regs. 1, 2

[F13Circumstances in which a person who has ceased to receive full-time education is to continue to be treated as a child E+W+S

7.—(1) [F14Subject to [F15paragraphs (1A) and (3)]] a person who has ceased to receive full-time education not being advanced education shall, if:-

(a) he is under the age of 16 when he so ceases F16..., from the date on which he attains that age; or

(b)he is 16 or over when he so ceases, from the date on which he so ceases,

continue to be treated as a child within section 2(1) of the Act up to and including the week including the terminal date or if he attains the age of 19 on or before that date up to and including the week including the last Monday before he attains that age.

[F17(1A) In the case of a person specified in either sub-paragraph (a) or (b) of paragraph (1) who had not attained compulsory school age when he ceased to receive full-time education, the terminal date in his case shall be that specified in sub-paragraph (a), or (b) or (c) of paragraph (2) whichever next follows the date on which he would have attained that age.]

(2) In this regulation the "terminal date" means:-

(a)the first Monday in January; or

(b)the Monday following Easter Monday; or

(c)the first Monday in September,

whichever first occurs after the date on which the person's said education ceased.]

[F18(2A) In this regulation “compulsory school age” means—

(a)in England and Wales, the upper limit of compulsory school age as determined in accordance with section 9 of the Education Act 1962

(b)in Scotland, the upper limit of school age as determined in accordance with sections 31 and 33 of the Education (Scotland) Act 1980.]

[F19(3) Benefit shall not be payable to any person entitled to benefit in respect of a child by virtue of this regulation for any week in which that child is engaged [F20in remunerative work].]

[F21(4) Subject to paragraphs (3) and (6), a person whose name was entered as a candidate for any external examination in connection with full-time education not being advanced education, which he was receiving at that time, shall so long as his name continued to be so entered before ceasing to receive such education continue to be treated as a child for any week in the period specified in paragraph (5)]

[F21(5) Subject to paragraph (6), the period specified for the purposes of paragraph (4) is the period beginning with the date when that person ceased to receive such education ending with—

(a)whichever of the dates in sub-paragraphs (a), (b) and (c) of paragraph (2) first occurs after the conclusion of the examination (or the last of them, if there are more than one), or

(b)the expiry of the week which includes the last Monday before his 19th birthday,

whichever is the earlier.

(6)  The The period specified in paragraph (5) shall in the case of a person who has not attained the age of 16 when he so ceased, begin with the date on which he attained that age.]

Textual Amendments

F16Words in reg. 7(1)(a) omitted (6.4.1987) by virtue of The Child Benefit (General) Amendment Regulations 1987 (S.I. 1987/357), regs. 1, 5(1)(b)

[F22Exclusion from benefit of children aged 16 but under the age of 19 who are receiving advanced educationE+W+S

7A.  Benefit shall not be payable in respect of a child by virtue of section 2(l)(b) of the Act (person to be treated as a child for any week in which he is aged 16 but under the age of 19 and receiving full-time education) if that child is receiving advanced education.]

Textual Amendments

[F23Child receiving training under the youth training scheme E+W+S

7B.  Child benefit shall not be payable by virtue of section 2(1)(b) of the Act in respect of a child aged 16 or over for any week—

(a)in which training for that child is being provided under the youth training scheme; and

(b)in respect of which an allowance may be paid under that scheme to that child.]

Textual Amendments

[F24Child receiving income support or income-based jobseeker’s allowanceE+W+S

7C.  Child benefit shall not be payable in respect of a child by virtue of section 142(1)(c) of the Social Security Contributions and Benefits Act 1992 for any week in respect of which that child receives income support or income-based jobseeker’s allowance within the meaning of section 1(4) of the Jobseekers Act 1995.]

Textual Amendments

[F25Circumstances in which a person who has ceased to receive full-time education is to be treated as a child E+W+S

7D.—(1) For the purposes of section 2(1)(aa) of the Act, in relation to a person under the age of 18 who is not receiving full-time education, the prescribed conditions are—

(a)that person is registered for work or for training under the youth training scheme with—

(i)the [F26Department of State for Education and Employment];

(ii)the Ministry of Defence;

(iii)in England and Wales, a local education authority within the meaning of section 114(1) of the Education Act 1944 (interpretation);

(iv)in Scotland, an education authority within the meaning of section 135(1) of the Education (Scotland) Act 1980 (interpretation); or

(v)or the purposes of applying Council Regulation, any corresponding body in another member State;

(b)that person is not engaged in remunerative work;

(c)the extension period which applies in the case of that person has not expired;

(d)immediately before the extension period begins, the person who is responsible for him is entitled to benefit in respect of him without regard to this regulation; and

(e)the person who is responsible for him has made a written request to the Department for the payment of benefit during the extension period.

(2) For the purposes of paragraph (1)(c), (d) and (e), the extension period—

(a)begins on the first day of the week in which benefit would cease to be payable in respect of a person but for this regulation; and

(b)where a person ceases to be treated as a child by virtue of section 2(1)(a) of the Act (meaning of child) or regulation 7 (circumstances in which a person who has ceased to receive full-time education is to continue to be treated as a child)—

(i)on or after the first Monday in September, but before the first Monday in January of the following year, ends on the last day of the week which falls immediately before the week which includes the first Monday in January in that year;

(ii)on or after the first Monday in January but before the Monday following Easter Monday in that year, ends on the last day of the week which falls 12 weeks after the week which includes the first Monday in January in that year;

(iii)at any other time of the year, ends on the last day of the week which falls 12 weeks after the week which includes the Monday following Easter Monday in that year.

(3) Child benefit shall not be payable by virtue of section 2(1)(aa) of the Act in respect of a child aged 16 or over for any week in which—

(a)he is engaged in training under the youth training scheme; or

(b)he is entitled to income support [F27or income-based jobseeker’s allowance within the meaning of section 1(4) of the Jobseekers Act 1995].]

Textual Amendments

Employed traineesE+W+S

8.—(1) Where but for the provisions of paragraph 2(1) of Schedule 1 to the Act (a person not to be entitled to benefit by virtue of section 2(1)(b) of the Act in respect of a child if the education in question is received by that child by virtue of his employment or of any office held by him) a person would be entitled to benefit in respect of a child, that child shall not for any week be treated as receiving education by virtue of his employment or of any office held by him if that week—

[F28(a)begins in what has been or is likely to be a continuous period of not less than 6 months in respect of which that child receives no financial support by virtue of his employment or any office held by him; F29...

F29(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

[F30(1A) Subject to the provisions of paragraph (1), a child who is receiving education in any week shall be treated as receiving such education by virtue of his employment or of any office held by him if, in consideration of that education, that child receives financial support in respect of that week by virtue of his employment or any office held by him.]

(2) [F31For the purposes of this regulation], any reimbursement of the cost of books, equipment, tuition, examination fees, travelling expenses and contributions under the Social Security Act is not to be treated as the receipt by the child of financial support.

Textual Amendments

F28Reg. 8(1)(a)(b) substituted for words (24.11.1980) by The Child Benefit (General) Amendment Regulations 1980 (S.I. 1980/1045), regs. 1, 6

Persons exempt from taxE+W+S

9.—(1) For the purposes of paragraph 4 of Schedule 1 to the Act (except where regulations otherwise provide no person to be entitled to benefit in respect of a child if either that person or such other person as may be prescribed is exempt from tax under such provisions as may be prescribed) a person and, if that person is residing with his spouse [F32or partner], his spouse [F32or partner], shall not be entitled to benefit in respect of a child for any week in respect of which he or, where they are residing together, his spouse[F32or partner] receives earnings or other emoluments which are exempted from United Kingdom income tax under—

(a)section 367 or sections 372 to 374 of the Taxes Act (exemption from income tax etc. of visiting forces, staffs of allied headquarters and of Commonwealth and foreign representatives);

(b)section 2 of, and Article 34 or 37 of Schedule 1 to, the Diplomatic Privileges Act 1964 M5, or section 1 of, and Article 49 or 66 of Schedule 1 to, the Consular Relations Act 1968 M6 (exemption from income tax etc. of members of diplomatic missions and their staffs etc. and of certain consular officers etc.);

(c)section 4 of the Arbitration (International Investment Disputes) Act 1966 M7 (status, immunities and privileges conferred by the Convention on the settlement of investment disputes between States and nationals of other States);

(d)an Order in Council, statutory notice, or regulations, made or given under, or continuing to have effect by virtue of, any of the following enactments—

(i)the Bretton Woods Agreements Act 1945 M8, section 3 (status, immunities and privileges of the International Monetary Fund, the International Bank for Reconstruction and Development and governors, executive directors, alternates, officers and employees of the Fund and Bank);

(ii)the Taxes Act, section 497 (relief from double taxation);

(iii)the Consular Relations Act 1968, section 3(1) (additional privileges and immunities accorded as a result of agreement) and section 12 (privileges and immunities in connection with Commonwealth and Irish establishments);

(iv)the International Finance Corporation Act 1955 M9, section 3 (status, immunities and privileges of the International Finance Corporation, its governors, directors, alternates, officers and employees);

(v)the International Development Association Act 1960 M10, section 3 (status, immunities and privileges of the Association, its governors, directors, alternates, officers and employees);

(vi)the Diplomatic Privileges Act 1964, section 2(6) (certain privileges and immunities admitted by, or certain additional privileges and immunities granted by, the receiving State);

(vii)the International Organisations Act 1968 M11, sections 1, 2, 5 and 6 and 12(5) and paragraphs 9, 15, 21 and 23 of Schedule 1 (privileges and immunities of certain international organisations and their officers etc.);

(viii)the European Communities Act 1972 M12, section 2(2) (giving effect to inter alia the Protocol on the Privileges and Immunities of the European Communities—Articles 12 to 15, 20 and 21).

[F33(1A) For the purpose of paragraph (1), “partner” means any person who is living with another person as his spouse]

F34(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F34(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F35(4) Paragraph (1) shall not affect the entitlement to benefit of any person who was so entitled under paragraphs (2) and (3) before their revocation.]

Textual Amendments

Marginal Citations

M89 & 10 Geo. 6. c. 19.

M94 & 5 Eliz. 2. c, 5.

[F36Child living with another person as his spouseE+W+S

9A.—(1) Except in the circumstances specified in paragraph (2), benefit shall not be payable to any person in respect of a child for any week in which that child is living with another person as his spouse (referred to in this regulation as “the partner”) and that child—

(a)is under the age of 18 and not receiving full-time education; or

(b)is under the age of 19 and receiving full-time education.

(2) The specified circumstances are that—

(a)the person to whom benefit is payable is not the partner of that child; and

(b)the partner of that child is receiving full-time education.]

Textual Amendments

Married childE+W+S

10.  A person shall not be disentitled to benefit in respect of a married child by virtue of paragraph 3 of Schedule 1 to the Act (unless regulations otherwise provide no person to be entitled to benefit in respect of a married child) if—

(a)that person is not the spouse of that child; and

(b)that child either is not residing with his spouse or, if he is, the spouse is receiving full-time education.

[F37Circumstances in which persons absent from one another are or are not to be treated as residing togetherE+W+S

11.—(1) Where a person is married, he and his spouse shall be treated for the purposes of the Act as residing together during any period of absence the one from the other falling before the date in that period of absence on which-

(a) they are separated under an order of a court of competent jurisdiction or deed of separation; or

(b)they have been absent the one from the other for at least 91 consecutive days,

and, for any part of that period of absence from one another from the date on which they are separated as specified in sub-paragraph (a) or have already been absent from one another as specified in sub-paragraph (b), the spouses shall be treated for the purposes of the Act as not residing together where such absence is likely to be permanent but as residing together where such absence is not likely to be permanent.

(2) Spouses shall be treated as residing together for the purposes of the Act during any period in which any absence the one from the other is by reason only of the fact that either of them is, or they both are, undergoing medical or other treatment as an in-patient in a hospital or similar institution whether such absence is temporary or not.

(3) Where two persons are parents of a child but not husband and wife they shall be treated as residing together for the purposes of the Act during any period of temporary absence the one from the other where they would be so treated but for such temporary absence.]

Textual Amendments

Polygamous marriagesE+W+S

12.—(1) A polygamous marriage shall, for the purposes of Part I of the Act and any regulations thereunder, be treated as having the same consequences as a monogamous marriage for any day, but only for any day, throughout which the polygamous marriage is in fact monogamous.

(2) In paragraph (1)—

(a)“polygamous marriage” means a marriage celebrated under a law which, as it applies to the particular ceremony and to the parties thereto, permits polygamy;

(b)“monogamous marriage” means a marriage celebrated under a law which does not permit polygamy;

(c)a polygamous marriage is referred to as being in fact monogamous when neither party to it has any spouse additional to the other; and

(d)the day on which a polygamous marriage is contracted, or on which it terminates for any reason, shall be treated as a day throughout which that marriage was in fact monogamous if at all times on that day after it was contracted, or as the case may be, before it terminated, it was in fact monogamous.

Prescribed manner of making an election under Schedule 2 to the ActE+W+S

13.—(1) An election under Schedule 2 to the Act (any election under that Schedule to be made in the prescribed manner) shall be made by giving notice in writing to the Secretary of State at an office of the Department on a form approved by the Secretary of State or in such other manner being in writing as he may accept as sufficient in the circumstances of any particular case or class of cases.

(2) An election shall not be effective to confer entitlement to benefit in respect of a child for any week earlier than the week following that in which it is made if the earlier week is one in respect of which benefit has been paid in respect of that child and has not been required to be repaid or voluntarily repaid or recovered.

(3) Any election as above may be superseded by another subsequent election made in accordance with the foregoing provisions of this regulation.

Modification of priority provisions in Schedule 2 to the ActE+W+S

14.—(1) Where a person has claimed benefit in respect of a child in respect of whom he would be entitled to benefit but for the fact that under the provisions of Schedule 2 to the Act (priority between persons entitled) some other person is entitled to benefit in respect of that child in priority to him, if that other person gives the Secretary of State notice in writing at an office of the Department that he does not wish to have priority of title to benefit in respect of that child the provisions of the said Schedule 2 shall, subject to paragraph (2), have effect with the modification that that other person does not have such priority.

(2) A notice under paragraph (1) shall—

(a)subject to sub-paragraph (b) below, have effect unless and until the said other person, subsequent to the giving of the notice, makes a further claim to benefit in respect of the said child; but

(b)not be effective as respects any week in respect of which benefit in respect of the said child is paid to the said other person or to a person on his behalf.

[F38Exception to section 6(3) of the Act E+W+S

14A.—(1)  A person shall not be disentitled to benefit in respect of a child for any week by virtue of the provisions of section 6(3) of the Act (persons not entitled to benefit for any week if benefit already paid for that week to another person, whether or not that other person was entitled to it) if in respect of that week—

(a)the determining authority has decided that the Secretary of State shall be entitled to recover benefit which has already been paid in respect of that child from a person in consequence of his misrepresentation of, or his failure to disclose, any material fact and, where that determining authority is one from whose decision an appeal lies, the time for appealing has expired and no appeal has been made; or

(b)the benefit already paid to the other person has been voluntarily repaid to, or recovered by, the Department in a case where the determining authority either—

(i)has decided on review that while there was no entitlement to benefit it is not recoverable, or

(ii)has decided on review that there was no entitlement to benefit but has made no decision as to its recoverability.

(2)  In this regulation“determining authority” means, as the case may require, the Chief or any other adjudication officer, a social security appeal tribunal, the Chief or any other Social Security Commissioner or a tribunal of three such Commissioners constituted in accordance with section 116 of the Social Security Act 1975 as applied to appeals concerning child benefit by section 52(3) and (6) of the Social Security act 1986.]

Textual Amendments

[F39Prescribed conditions relating to persons subject to immigration controlE+W+S

14B.  The prescribed conditions for the purposes of section 146A of the Social Security Contributions and Benefits Act 1992 (entitlement of person subject to immigration control to child benefit) are that a person subject to immigration control is—

(a)a person recorded by the Secretary of State as a refugee within the definition in Article 1 of the Convention relating to the Status of Refugees done at Geneva on 28th July 1951, as extended by Article 1(2) of the Protocol relating to the Status of Refugees done at New York on 31st January 1967;

(b)a person who has been granted exceptional leave outside the provisions of the immigration rules within the meaning of the Immigration Act 1971—

[F40(i)to enter the United Kingdom by an immigration officer appointed for the purposes of the Immigration Act 1971; or

(ii)to remain in the United Kingdom by the Secretary of State];

(c)a national, or a member of the family of a national, of a State contracting party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 as adjusted by the Protocol signed at Brussels on 7th March 1993;

(d)a person who is—

(i)lawfully working in Great Britain and is a national of a state with which the Community has concluded an Agreement under Article 238 of the Treaty establishing the European Community providing, in the field of social security, for the equal treatment of workers who are nationals of the signatory State and their families, or

(ii)a member of the family of, and living with, such a person;

(e)a person in respect of whom there is an Order in Council under section 179 of the Social Security Administration Act 1992 giving effect to a reciprocal agreement which, for the purposes of child benefit, has the effect that periods of presence or residence in another country are to be treated as periods of presence or residence in Great Britain.]

[F41(f)a person whose leave to enter or remain in the United Kingdom is not subject to any limitation;

(g)a person, other than a person to whom any of paragraphs (a) to (f) above apply who, immediately before 7th October 1996, is being paid child benefit, save that this paragraph shall apply only until such time as that person’s entitlement to that benefit is reviewed under section 25 of the Social Security Administration Act 1992.]

Textual Amendments

F40Words in reg. 14B(b) substituted (coming into force in accordance with reg. 1(2)(3)(4)(5)(6) of the amending S.I.) by The Social Security (Miscellaneous Amendments) Regulations 1998 (S.I. 1998/563), regs. 1, 18(1)(2)(a)

Set-off of benefit against arrears of non-contributory invalidity pension and of non-contributory invalidity pension against arrears of benefitE+W+S

F4215.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Children in detention, care etc.E+W+S

16.—(1) [F43In its application to any case to which there also applies] of paragraph 1 of Schedule 1 to the Act (exclusion from entitlement to benefit in respect of children in detention, care etc.) section 24(2) of the Act (subject to any provision made by regulations, references in the Act to any condition being satisfied or any facts existing in a week to be construed as references to the condition being satisfied or the facts existing at the beginning of that week) shall have effect as if for the words “at the beginning of that week” there were substituted the words “ throughout any day in that week ”.

(2) For the purposes of paragraph 1(a) of the said Schedule (child undergoing imprisonment or detention in legal custody) a child shall not be regarded as undergoing imprisonment or detention in legal custody in any week unless in connection with a charge brought or intended to be brought against him in criminal proceedings at the conclusion of those proceedings or, in the case of default of payment of a sum adjudged to be paid on conviction, in respect of such default, a court imposes a penalty upon him; and for those purposes—

(a)“court” means any court in the United Kingdom, the Channel Islands or the Isle of Man; and

(b)‘penalty’ means, in the case of any court in Great Britain—

(i)a sentence of imprisonment or borstal training;

(ii)a sentence of detention under section 53 of the Children and Young Persons Act 1933 M13 or section 206 of the Criminal Procedure (Scotland) Act 1975 M14; or

(iii)an order for detention in a remand centre, a detention centre or a young offenders institution, or made under or by virtue of section 198, 406 or 413 of the said Act of 1975,

and in the case of any court not in Great Britain, any comparable sentence or order.

(3) The said paragraph (l)(a) shall not apply to a child in respect of any week in which that child is liable to be detained in a hospital or similar institution in Great Britain as a person suffering from mental disorder unless, subsequent to the imposition of a penalty—

(a)he has undergone detention in a prison, a detention centre, a borstal institution, a young offenders institution or, if not in Great Britain, any comparable place;

(b)he was removed to the hospital or similar institution while still liable to be detained as a result of the said penalty and, in the case of a person who is liable to be detained in the hospital or similar institution by virtue of any provisions of the Mental Health Act 1959 M15 or the Mental Health (Scotland) Act 1960 M16, a direction restricting his discharge has been given under either of those Acts and is still in force,

and in this paragraph—

(i)“hospital or similar institution” means a place (not being a prison, a detention centre, a borstal institution, a young offenders institution, a remand centre or, if not in Great Britain, any comparable place and not being at or in any such place) in which persons suffering from mental disorder are or may be received for care or treatment;

(ii)“mental disorder” shall be construed as including references to any mental disorder within the meaning of the said Act of 1959 or the said Act of 1960; and

(iii)a person who is liable to be detained by virtue of any provision of the said Act of 1959 or the said Act of 1960 shall be treated as if a direction restricting his discharge had been given under those Acts if he is to be so treated for the purposes of either of them.

(4) Where, as respects a child in relation to whom each of the conditions specified in paragraph (3)(a) and (b) is satisfied, a certificate given by or on behalf of the Secretary of State for the Home Department or the Secretary of State for Scotland and furnished to the [F44Secretary of State for Social Security] shows the earliest date on which that child would have been expected to be discharged from detention pursuant to the said penalty if he had not been transferred to a hospital or similar institution, the said conditions shall be deemed not to be satisfied in relation to that child as from the day next following that date.

(5) For the purposes of paragraph 1(c) of Schedule 1 to the Act (child in care of a local authority in such circumstances as may be prescribed) the prescribed circumstances are that the child is—

(a)received into care under [F45section 2 of the Child Care Act 1980] or section 15 of the Social Work (Scotland) Act 1968 M17 or pursuant to a resolution under section 16A(1) of the said Act of 1968 or [F46section 65(1) of the Child Care Act 1980];

(b)in the care of a local authority pursuant to the making of a supervision requirement to which section 44(1)(a) of the Social Work (Scotland) Act 1968 applies and is boarded out by that authority in the home of any person in accordance with the provisions of [F47the Boarding-out and Fostering of Children (Scotland) Regulations 1985];

(c)committed to the care of a local authority in pursuance of an order made or deemed to be made under the Children and Young Persons Act 1969 M18;

(d)committed to the care of a local authority under a care order made under—

(i)section 2(1)(e) of the Matrimonial Proceedings (Magistrates' Courts) Act 1960 M19 [F48or section 10(1) of the Domestic Proceedings and Magistrates' Courts Act 1978]; or

(ii)section 7(2) of the Family Law Reform Act 1969 M20; or

(iii)section 43 of the Matrimonial Causes Act 1973 M21; or

(iv)section 2(2) or 11(1) of the Guardianship Act 1973 M22; or

(v)sections 17(1)(A) or 36(2) or (3)(a) of the Children Act 1975; or

(e)committed to the care of a local authority pursuant to an order of a court made under section 10(1) of the Matrimonial Proceedings (Children) Act 1958 M23.

[F49(f)provided with accommodation by a local authority under sections 20 or 21(2)(c) of the Children Act 1989 (provision of accommodation for children);

(g)treated by virtue of paragraph 20 of Schedule 14 to the Children Act 1989 (children in voluntary care) as a child who is provided with accommodation under Part III of that Act; or

(h)in the care of a local authority pursuant to a care order within the meaning of section 105(1) of the Children Act 1989 (interpretation).]

(6) A person, shall not be disentitled to benefit in respect of a child for any week by virtue of the fact that sub-paragraph (a), (b) or (c) of paragraph 1 of Schedule 1 to the Act (except where regulations otherwise provide no person to be entitled to benefit in respect of a child for any week if in that week the child is in detention, care etc.) applies to that child—

(a)unless that week is the 9th or a subsequent week in a series of consecutive weeks in which any of those sub-paragraphs have applied to that child; or

(b)notwithstanding that that week is the 9th or a subsequent week in a series of consecutive weeks in which any of those sub-paragraphs have applied to that child, if—

[F50(i)that week is one in which falls the first day in a period of 7 consecutive days in which the child lives with that person for at least a part of the first day and throughout the following 6 days; or

(ii)that week is one in which falls the first day in a period of 7 consecutive days throughout which the child lives with that person, being a period of 7 consecutive days which immediately follows either a similar period of 7 consecutive days or the period of 7 consecutive days referred to in head (i) above, or

(iii)that week is one in which falls the day, or the first day in a period of less than 7 consecutive days, throughout which the child lives with that person, being a day or days which immediately follow the period of 7 consecutive days referred to in head (i) above or a period of 7 consecutive days referred to in head (ii).]

[F51(iv)]as at that week that person establishes that he is a person with whom the child, while the said sub-paragraph (a), (b) or (c) applies to him, ordinarily lives throughout at least one day in each week.

(7) For the purposes of paragraph (6), a person shall not be regarded as having a child living with him throughout any day or week unless he actually has that child living with him throughout that day or week.

(8) For any week in which a child is boarded out by a local authority in the home of any person in accordance with the provisions of the Boarding-Out of Children Regulations 1955 M24 or [F52the Boarding-out and Fostering of Children (Scotland) Regulations 1985], paragraph (6) shall not apply to that person in relation to that child.

[F53(9) Paragraph (6) shall not apply in respect of any child in the care of a local authority who has been placed for adoption in the home of a person proposing to adopt him, provided that a local authority is making a payment in respect of either the child’s accommodation or maintenance or both, under [F54section 23 of the Children Act 1989] or section 21 of the Social Work (Scotland) Act 1968.]

[F53(10) For the purposes of paragraph (9), placing for adoption means placing for adoption in accordance with the Adoption Agencies Regulations 1983 or the Adoption Agencies (Scotland) Regulations 1984.]

Textual Amendments

F49Reg. 16(5)(f)(g)(h) added (coming into force in accordance with reg. 1(1) of the amending S.I.) by The Child Benefit (General) Amendment Regulations 1991 (S.I. 1991/2105), regs. 1(1), 3(2)

F50Reg. 16(6)(b)(i)-(iii) substituted for (7.2.1983) by The Child Benefit (General) Amendment Regulations 1983 (S.I. 1983/3), regs. 1, 3(3)

F51Reg. 16(6)(b)(iii): reg. 16(6)(b)(iii) renumbered as reg. 16(6)(b)(iv) (7.2.1983) by The Child Benefit (General) Amendment Regulations 1983 (S.I. 1983/3), regs. 1, 3(3)

F54Words in reg. 16(9) substituted (coming into force in accordance with reg. 1(1) of the amending S.I.) by The Child Benefit (General) Amendment Regulations 1991 (S.I. 1991/2105), regs. 1(1), 3(3)

Marginal Citations

M24S.I. 1955/1377 (1955 I, p. 286).

Right to benefit of voluntary organisationsE+W+S

17.—(1) Subject to the following provisions of this regulation, a voluntary organisation shall for the purposes of benefit be regarded as a person with whom a child is living, and the only person with whom that child is living, for any week in which that child is—

(a)living in premises which are provided or managed by the voluntary organisation, being premises which are required to be registered with a Government Department or local authority or which are otherwise regulated under or by virtue of any enactment relating to England and Wales or Scotland; or

(b)boarded out by the voluntary organisation in the home of any person in accordance with the provisions of the Boarding-Out of Children Regulations 1955 or [F55the Boarding-out and Fostering of Children (Scotland) Regulations 1985]

(2) A voluntary organisation shall not be regarded as a person with whom a child is living in any week unless in that week the child is actually living with the voluntary organisation in accordance with the provisions of paragraph (1); so however that a voluntary organisation shall not be regarded as having ceased to have a child living with it by reason only of any temporary absence of that child F56...—

(a)if the child is undergoing medical or other treatment as an in-patient in a hospital, [F57until such absence has lasted] for more than 84 days; or

(b)if the child is temporarily absent for any other reason, [F58until such absence has lasted] for more than 56 days.

(3) In calculating for the purposes of paragraph (2)(a) whether a child has been temporarily absent for not more than 84 days, two or more distinct periods of temporary absence separated by one or more intervals each not exceeding 28 days shall be treated as a continuous period equal in duration to the total of such distinct periods and ending on the last day of the latter or last of such periods.

(4) A voluntary organisation shall not be regarded as a person with whom a child is living in any week if in that week—

(a)that child is in residential accommodation pursuant to arrangements made under section 12 of the Health Services and Public Health Act 1968 M25 or section 27(1) of the National Health Service (Scotland) Act 1947 M26; or

(b)paragraph 1 of Schedule 1 to the Act (exclusion from entitlement to benefit in respect of children in detention, care etc.) applies to that child.

(5) Where immediately before the week in which paragraph (1) applies to a child that child was living with a person who was then entitled to benefit in respect of it, the said paragraph (1) shall, while under section 3(2) of the Act that child would be treated as continuing to live with that person, have effect in relation to that person as if the words “and the only person with whom that child is living” were omitted.

(6) Section 3(1)(6) of the Act (person to be treated as responsible for a child in any week if he is contributing to the cost of providing for the child at a weekly rate not less than the weekly rate of benefit payable in respect of the child for that week) and regulation 16(6) shall not apply to a voluntary organisation.

[F59(7) Where a person makes a claim for child benefit in respect of a child on or after 24th November 1980, that person shall not be treated for the purposes of section 3(l)(b) of the Act as contributing to the cost of providing for that child for any week in which that child is boarded-out by a voluntary organisation in the home of that person in accordance with the provisions of the Boarding-Out of Children Regulations 1955 or [F60the Boarding-out and Fostering of Children (Scotland) Regulations 1985] .]

Textual Amendments

Marginal Citations

PART IIE+W+STransitional Provisions

Definitions for the purposes of Part II of these RegulationsE+W+S

18.  In this Part of these Regulations, “the Act of 1965” means the Family Allowances Act 1965 M27 and “family allowance” means an allowance under the Act of 1965.

Marginal Citations

Transitional modification of section 11 of the Family Allowances Act 1965 and of regulations 12 and 13 of the Family Allowances (Qualifications) Regulations 1969E+W+S

19.  Section 11 of the Act of 1965 (child not to be treated as included in any family in certain circumstances) except subsections (6) and (8) of that section shall not apply to a child for any period which does not begin before 1st February 1977; and in a case where the absence of a child from a person does not begin before that date and is by reason of the fact that the child, whether residing in a residential establishment or boarded out under the Children Act 1948 M28 or the Social Work (Scotland) Act 1968 or otherwise, has been kept in the care of a local authority under the said Act of 1948 or the said Act of 1968, regulations 12 and 13 of the Family Allowances (Qualifications) Regulations 1969 M29 (rules for determining, inter alia, whether the absence of a child from a parent or a person other than a parent is temporary) shall have effect in relation to such an absence as if references in them to 4 weeks were references to 8 weeks.

Marginal Citations

M29S.I. 1969/212 (1969 I, p.543).

Transitional provisions relating to apprentices under the Act of 1965E+W+S

20.—(1) Where immediately before the appointed day a family allowance is payable in respect of a person aged 16 but under the age of 19 as being an apprentice within the meaning of the Act of 1965, then notwithstanding that that person does not satisfy the requirement in section 2(1)(b) of the Act that he is receiving full-time education, he shall be treated as satisfying that requirement while he continues without a break to be an apprentice within the meaning of the Act of 1965; so however that the weekly rate of benefit payable in respect of him shall be the weekly rate at which family allowance was payable in respect of him immediately before the appointed day.

(2) Where in respect of a period ending immediately before the appointed day a person is entitled to a family allowance and the elder or eldest child included in the family of that person for the purposes of the Act of 1965 is an apprentice within the meaning of that Act, then for any period beginning with that day throughout which—

(a)that child continues to be an apprentice within the meaning of the Act of 1965; and

(b)that person would be entitled to benefit in respect of that child if that child satisfied the requirement in section 2(\)(b) of the Act that he is receiving full-time education,

benefit to which that person may be entitled in respect of a younger child in respect of whom he was entitled to a family allowance immediately before that day shall be payable at the weekly rate appropriate to a child who is not the only, elder or eldest child in respect of whom a person is entitled to benefit.

Transitional provisions relating to circumstances in which spouses are to be treated as residing otherwise than togetherE+W+S

21.—(1) Where immediately before the appointed day a married person is entitled to a family allowance and for the purposes of the Act of 1965 he then fell to be regarded as living otherwise than together with his spouse, while he and that spouse would continue without a break to be regarded as living otherwise than together for the purposes of the Act of 1965 they shall be treated as residing otherwise than together for the purposes of benefit.

(2) Where for the purposes of section 16 of the Act (interim benefit for unmarried or separated parents with children) a person who was married—

(a)fell to be regarded as not residing with his spouse immediately before the appointed day; and

(b)was entitled to benefit under that section for a period ending immediately before that day,

then while without any break that person would continue to be regarded as not residing with his spouse for the purposes of that section he shall be treated as not residing with his spouse for the purposes of benefit.

Transitional provision relating to calculation of contributions and expenditure in respect of a childE+W+S

22.  Where in connection with benefit a question arises whether in relation to the week beginning with the appointed day a person is—

(a)contributing to the cost of providing for a child at a weekly rate which is not less than the weekly rate of benefit payable in respect of the child for that week; or

(b)regularly incurring expenditure in respect of a child,

and in determining that question account falls to be taken of contributions made or expenditure incurred by that person before the appointed day, that person shall be treated as having been so contributing or as so regularly incurring expenditure before the appointed day if immediately before that day—

(i)he could be treated as satisfying in respect of the child the maintenance requirements in paragraph 1 of the Schedule to the Act of 1965; or

(ii)that child was, or could have been, treated as included in his family for the purposes of the Act of 1965.

David Ennals,

Secretary of State for Social Services

Explanatory Note

(This note is not part of the Regulations)

These Regulations contain miscellaneous provisions relating to the right to child benefit under the Child Benefit Act 1975 (Part I of the Regulations) and to the transition from family allowances under the Family Allowances Act 1965 and the interim benefit under section 16 of the 1975 Act to child benefit (Part II of the Regulations). The subject matter of each regulation is shown in the table of arrangement at the beginning of the Regulations.

The appointed day, the day on which child benefit first becomes payable, is 4th April 1977 (see the Child Benefit Act 1975 (Commencement No. 2) Order 1976 (S.I. 1976 No. 961)).

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