The Childcare (Free of Charge for Working Parents) (England) Regulations 2022

PART 3 E+W Determinations as to qualifying children of working parents

Description of young child E+W

Description of young child E+W

13.—(1) This regulation relates to section 1(2)(c) of the Act(1).

(2) A young child must be a child who—

(a) has attained the age of three, and

(b) is not looked after by a local authority (see regulation 9).

Commencement Information

I1 Reg. 13 in force at 1.12.2022, see reg. 1(b)

Conditions relating to parent and partner of parent E+W

Conditions relating to parent E+W

14.—(1) This regulation relates to section 1(2)(d) of the Act(2).

(2) A parent of a young child must be a parent mentioned in paragraph (3) or (4).

(3) A parent who—

(a) meets the qualifying paid work requirement in regulation 16 or 17,

(b) seeks the childcare, which is available free of charge by virtue of the Act, to enable the parent, or the parent’s partner (if any), to work,

(c) does not for the relevant tax year—

(i) expect their adjusted net income to exceed £100,000,

(ii) make a claim under section 809B of the Income Tax Act 2007 (which relates to certain residents not domiciled in the United Kingdom), or

(iii) expect section 809E of Income Tax Act 2007 to apply (which relates to certain residents not domiciled in the United Kingdom), and

(d) if a foster parent of the young child, has confirmation from the responsible local authority that it is satisfied that engaging in paid work other than as a foster parent is consistent with the child’s care plan (see regulation 5).

(4) A parent who—

(a) has a partner [F1 mentioned in regulation 15(3),] and

(b) is any of the following—

(i) a person with limited capability for work;

(ii) a person with limited capability for work and work-related activity;

(iii) a person entitled to a specified benefit;

(iv) a resident of an EEA State or Switzerland who is, under the law of the EEA State or Switzerland, entitled to a benefit of a kind that is substantially similar to a specified benefit.

F2 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F1 Words in reg. 14(4)(a) substituted (30.3.2023) by The Childcare and Inspection of Education, Children’s Services and Skills (Fees) (Amendments) Regulations 2023 (S.I. 2023/276), regs. 1(2), 14(a)

F2 Reg. 14(5) omitted (30.3.2023) by virtue of The Childcare and Inspection of Education, Children’s Services and Skills (Fees) (Amendments) Regulations 2023 (S.I. 2023/276), regs. 1(2), 14(b)

Commencement Information

I2 Reg. 14 in force at 1.12.2022, see reg. 1(b)

Conditions relating to partner of parent E+W

15.—(1) This regulation relates to section 1(2)(d) of the Act(3).

[F3 (2) If a parent of a young child has a partner, the partner must be a person mentioned in paragraph (3) or (4).]

[F4 (3) A person who—

(a) meets the qualifying paid work requirement in regulation 16 or 17,

(b) does not for the relevant tax year—

(i) expect their adjusted net income to exceed £100,000,

(ii) make a claim under section 809B of the Income Tax Act 2007 (claim for remittance basis to apply), or

(iii) expect section 809E of Income Tax Act 2007 to apply (application of remittance basis without claim: other cases), and

(c) if a foster parent of the young child, has confirmation from the responsible local authority that it is satisfied that engaging in any paid work other than as a foster parent is consistent with the child’s care plan.

(4) A person who is the partner of a parent mentioned in regulation 14(3) and who—

(a) has limited capability for work;

(b) has limited capability for work and work-related activity;

(c) is entitled to a specified benefit; or

(d) is a resident of an EEA State or Switzerland who is, under the law of the EEA State or Switzerland, entitled to a benefit of a kind that is substantially similar to a specified benefit.]

Textual Amendments

F3 Reg. 15(2) substituted (30.3.2023) by The Childcare and Inspection of Education, Children’s Services and Skills (Fees) (Amendments) Regulations 2023 (S.I. 2023/276), regs. 1(2), 15(1)(a)

F4 Reg. 15(3)(4) inserted (30.3.2023) by The Childcare and Inspection of Education, Children’s Services and Skills (Fees) (Amendments) Regulations 2023 (S.I. 2023/276), regs. 1(2), 15(1)(b)

Commencement Information

I3 Reg. 15 in force at 1.12.2022, see reg. 1(b)

Qualifying paid work requirement: employee E+W

16.—(1) A person who is an employee is in qualifying paid work if the person—

(a) holds a national insurance number (unless paragraph (2) applies), and

(b) meets the minimum income requirement in regulation 18 (unless paragraph (3) applies).

(2) Despite paragraph (1)(a), a person is not required to hold a national insurance number if the person is—

(a) a resident of an EEA State or Switzerland, and

(b) not an employee in the United Kingdom.

(3) Despite paragraph (1)(b), a person is not required to meet the minimum income requirement during any of the following—

[F5 (a) any period the person is—

(i) a foster parent, F6 ...]

[F7 (ii) absent from work during a period of parental bereavement leave under an employment rights enactment,

(iii) in receipt of statutory parental bereavement pay under the Social Security Contributions and Benefits Act, or

(iv) in receipt of statutory sick pay under the Social Security Contributions and Benefits Act;]

[F8 (b) in the case of a person on specified leave relating to a young child in respect of whom a declaration is being made, other than where sub-paragraph (a)(ii), (iii) or (iv) applies, the period of 31 days ending before the day on which the person returns to work;]

(c) in the case of a person in an EEA State or Switzerland, any period the person is, under the law of the EEA State or Switzerland, on leave of a kind substantially similar to specified leave.

(4) In this regulation—

F9 ...

“employment rights enactment” means any of the following—

(a)

the Employment Rights Act 1996(4);

(b)

the Employment Rights (Northern Ireland) Order 1996(5);

“national insurance number” means a national insurance number allocated under any of the following—

(a)

the National Insurance Act 1965(6);

(b)

the National Insurance Act (Northern Ireland) 1966(7);

(c)

the Social Security Act 1975(8);

(d)

the Social Security (Northern Ireland) Act 1975(9);

[F10 “the Social Security Contributions and Benefits Act” means either of the following—

(a)

the Social Security Contributions and Benefits Act 1992;

(b)

the Social Security Contributions and Benefits (Northern Ireland) Act 1992]

“specified leave” means, in relation to a person, any of the following—

(a)

a period the person is, under an employment rights enactment, absent from work during any of the following—

(i)

[F11 ordinary or additional maternity leave;

(ii)

ordinary or additional adoption leave;

(iii)

shared parental leave;

(iv)

parental leave;

(v)

paternity leave;

(vi)

parental bereavement leave;]

(b)

a period the person is, under [F12 the Social Security Contributions and Benefits Act], receiving any of the following—

(i)

state maternity allowance;

(ii)

statutory adoption pay;

(iii)

statutory maternity pay;

(iv)

statutory parental bereavement pay;

(v)

statutory paternity pay;

(vi)

statutory shared parental pay;

(vii)

statutory sick pay.

Textual Amendments

F5 Reg. 16(3)(a) substituted (30.3.2023) by The Childcare and Inspection of Education, Children’s Services and Skills (Fees) (Amendments) Regulations 2023 (S.I. 2023/276), regs. 1(2), 16(a)

F6 Word in reg. 16(3)(a)(i) omitted (1.1.2024) by virtue of The Childcare (Free of Charge for Working Parents) (England) (Amendment and Transitional Provision) Regulations 2023 (S.I. 2023/1330), regs. 1(2), 2(6)(a)(i)(aa)

F7 Reg. 16(3)(a)(ii)-(iv) substituted for reg. 16(3)(a)(ii) (1.1.2024) by The Childcare (Free of Charge for Working Parents) (England) (Amendment and Transitional Provision) Regulations 2023 (S.I. 2023/1330), regs. 1(2), 2(6)(a)(i)(bb)

F8 Reg. 16(3)(b) substituted (1.1.2024) by The Childcare (Free of Charge for Working Parents) (England) (Amendment and Transitional Provision) Regulations 2023 (S.I. 2023/1330), regs. 1(2), 2(6)(a)(ii)

F9 Words in reg. 16(4) omitted (1.1.2024) by virtue of The Childcare (Free of Charge for Working Parents) (England) (Amendment and Transitional Provision) Regulations 2023 (S.I. 2023/1330), regs. 1(2), 2(6)(b)

F10 Words in reg. 16(4) inserted (30.3.2023) by The Childcare and Inspection of Education, Children’s Services and Skills (Fees) (Amendments) Regulations 2023 (S.I. 2023/276), regs. 1(2), 16(b)(ii)

F11 Words in reg. 16(4) substituted (30.3.2023) by The Childcare and Inspection of Education, Children’s Services and Skills (Fees) (Amendments) Regulations 2023 (S.I. 2023/276), regs. 1(2), 16(b)(iii)

F12 Words in reg. 16(4) substituted (30.3.2023) by The Childcare and Inspection of Education, Children’s Services and Skills (Fees) (Amendments) Regulations 2023 (S.I. 2023/276), regs. 1(2), 16(b)(iv)

Commencement Information

I4 Reg. 16 in force at 1.12.2022, see reg. 1(b)

Qualifying paid work requirement: self-employed person E+W

17.—(1) A person who is a self-employed person is in qualifying paid work if the person—

(a) holds a national insurance number (unless paragraph (2) applies), and

(b) meets the minimum income requirement in regulation 18 (unless paragraph (3) applies).

(2) Despite paragraph (1)(a), a person is not required to hold a national insurance number if the person is—

(a) a resident of an EEA State or Switzerland, and

(b) not in self-employment in the United Kingdom.

(3) Despite paragraph (1)(b), a person is not required to meet the minimum income requirement during any of the following—

(a) any period the person would, if the person were an employee, not be required to meet the minimum income requirement (see regulation 16(3));

(b) if the person is in a start-up period, the period of 12 months beginning with the day on which the declaration relating to the person is made.

(4) In this regulation, “start-up period” means the period of 12 months—

(a) beginning with the day on which the person commences self-employment, but

(b) only if the person did not commence self-employment in any trade, profession or vocation in the period of five years ending before that day.

Commencement Information

I5 Reg. 17 in force at 1.12.2022, see reg. 1(b)

Minimum income requirement E+W

18.—(1) A person meets the minimum income requirement if the amount of income the person expects to earn from qualifying paid work in the relevant period is an amount of income equal to or greater than the product of—

(a) the minimum weekly income, and

(b) the number of weeks in the relevant period.

(2) The person may include the amount of income the person expects to earn as—

(a) an employee,

(b) a self-employed person, or

(c) an employee and a self-employed person.

(3) In this regulation—

“income” means—

(a)

in relation to an employee—

(i)

any earnings within the meaning given in section 62 of the Income Tax (Earnings and Pensions) Act 2003, and

(ii)

any amount treated as earnings under Chapters 7 to 10 of Part 2 of the Income Tax (Earnings and Pensions) Act 2003 (which relate to agency workers and workers’ services provided through intermediaries or managed service companies);

(b)

in relation to a self-employed person—

(i)

the amount of non-capital receipts the person expects to derive from a trade, profession or vocation less the amount of non-capital expenses the person expects to incur wholly and exclusively for the purposes of the trade, profession or vocation, or

(ii)

if the person carries on a trade, profession or vocation in a business partnership, the share expected to be allocated to the person of the partnership’s non-capital receipts less the share expected to be allocated to that person of the partnership’s non-capital expenses incurred wholly and exclusively for the purposes of the trade, profession or vocation;

“minimum weekly income” means, in relation to a person, the product of—

(a)

16, and

(b)

the hourly rate of the national minimum wage to which the person is entitled to be paid under the National Minimum Wage Act 1998(10);

“non-capital” means not of a capital nature;

“relevant period” means one of the following—

(a)

in the case of income as an employee, the period of three months [F13 beginning with—

(i)

the day on which the declaration relating to the employee is made, or

(ii)

if regulation 7(1)(d) applies, the day on which the person expects to be a person mentioned in any of regulation 7(1)(a) to (c);]

(b)

in the case of income as a self-employed person, any of the following—

(i)

the period [F14 of three months beginning with the day on which the declaration relating to the employee is made];

(ii)

the relevant tax year;

(c)

in the case of income as an employee and a self-employed person, the period mentioned in paragraph (a).

Textual Amendments

F13 Words in reg. 18(3) substituted (30.3.2023) by The Childcare and Inspection of Education, Children’s Services and Skills (Fees) (Amendments) Regulations 2023 (S.I. 2023/276), regs. 1(2), 17(a)

F14 Words in reg. 18(3) substituted (30.3.2023) by The Childcare and Inspection of Education, Children’s Services and Skills (Fees) (Amendments) Regulations 2023 (S.I. 2023/276), regs. 1(2), 17(b)

Commencement Information

I6 Reg. 18 in force at 1.12.2022, see reg. 1(b)

Declaration E+W

How to make a declaration E+W

19.—(1) This regulation relates to section 1(2)(e) of the Act(11).

(2) A person who makes a declaration in respect of a young child must be—

(a) the parent, or the partner of the parent, with whom the child normally lives, and

(b) a person in the United Kingdom.

(3) The declaration must be made—

(a) to the relevant authority,

(b) in either of the periods mentioned in regulation 20, and

(c) in the form and manner specified under regulation 21 (if any).

(4) In this regulation—

“person in the United Kingdom” has the meaning given in regulation 11;

“relevant authority” means—

(a)

in the case of a declaration in respect of a child who is placed with a foster parent, the responsible local authority, or

(b)

in the case of any other declaration, the Commissioners.

Commencement Information

I7 Reg. 19 in force at 1.12.2022, see reg. 1(b)

When a declaration may be made E+W

20.  A declaration in respect of a young child may be made—

[F15 (a) in the period of 16 weeks ending before the day on which the child will meet the description in regulation 13 (if known), except during the time—

(i) beginning on 1st January 2024 and ending before the day on which the child will meet the description in regulation 13 (if known), where that day occurs on or before 31st March 2024, and

(ii) beginning on 1st June 2024 and ending before the day on which the child will meet the description in regulation 13 (if known), where that day occurs on or before 31st August 2024,

where the period referred to in this sub-paragraph is 13 weeks; or]

(b) in the period—

(i) beginning with the day on which the child meets the description in regulation 13, and

(ii) ending before the day on which the child ceases to satisfy the requirements of section 1(2)(a) or (b) of the Act(12).

Textual Amendments

F15 Reg. 20(a) substituted (1.1.2024) by The Childcare (Free of Charge for Working Parents) (England) (Amendment and Transitional Provision) Regulations 2023 (S.I. 2023/1330), regs. 1(2), 2(7)

Commencement Information

I8 Reg. 20 in force at 1.12.2022, see reg. 1(b)

Form and manner of declaration E+W

21.—(1) The Commissioners or the responsible local authority (as the case may be) may specify the form of a declaration and the manner in which it is to be made.

(2) The specification may (amongst other things)—

(a) require a declaration to include information to—

(i) identify the person making the declaration (and any partner of that person),

(ii) identify the young child in respect of whom the declaration is being made, and

(iii) determine whether the young child is a qualifying child of working parents;

(b) require a declaration to be made by electronic communications;

(c) if a declaration relates to a self-employed person, require a declaration to be accompanied by confirmation, orally or in writing, that the self-employed person has complied with any notice given under section 8(1) of the Taxes Management Act 1970 (which relates to personal returns).

Commencement Information

I9 Reg. 21 in force at 1.12.2022, see reg. 1(b)

Determination E+W

Determination of qualifying child of working parents: Commissioners E+W

22.—(1) This regulation applies if—

(a) a person makes a declaration to the Commissioners in respect of a young child, and

(b) the Commissioners have not declined to make a determination in respect of the declaration (see regulation 23).

(2) The Commissioners must—

(a) make a determination as to whether the child is a qualifying child of working parents,

(b) notify the person of the determination, and

(c) include in that notification a statement to the effect that the person has—

(i) a right to apply to the Commissioners for a review of the determination (see regulation 36), and

(ii) a right to appeal to the First-tier Tribunal against the determination, but only after the Commissioners have considered an application for a review (see regulation 40).

Commencement Information

I10 Reg. 22 in force at 1.12.2022, see reg. 1(b)

Power to decline to make a determination E+W

23.—(1) This regulation applies if—

(a) two or more persons each make a declaration to the Commissioners in respect of the same young child, and

(b) it appears to the Commissioners that two or more of those persons may meet the requirements in regulation 19(2) (which provides for who can make a declaration).

(2) The Commissioners may, in respect of one or more of the declarations, decline to make a determination as to whether the child is a qualifying child of working parents.

(3) If the Commissioners decline to make a determination, they must—

(a) notify the person who made the declaration, and

(b) include in the notification a statement to the effect that the person has—

(i) a right to apply to the Commissioners for a review of the decision (see regulation 36), and

(ii) a right to appeal to the First-tier Tribunal against the decision, but only after the Commissioners have considered an application for a review (see regulation 40).

Commencement Information

I11 Reg. 23 in force at 1.12.2022, see reg. 1(b)

Determination of qualifying child of working parents: responsible local authority E+W

24.—(1) This regulation applies if a person makes a declaration to the responsible local authority in respect of a young child placed with a foster parent.

(2) The responsible local authority (on behalf of the Commissioners) must—

(a) make a determination as to whether the child is a qualifying child of working parents, and

(b) notify the person of the determination.

Commencement Information

I12 Reg. 24 in force at 1.12.2022, see reg. 1(b)

Effect of declaration E+W

Period for which declaration has effect E+W

25.—(1) A declaration in respect of a young child has effect for three months beginning with—

(a) the day on which the young child is determined to be a qualifying child of working parents, or

(b) if the declaration was made in accordance with regulation 20(a) (which provides for anticipatory declarations), the day on which the young child meets the description in regulation 13.

(2) Despite paragraph (1), the Commissioners may, if they consider it appropriate, vary the period for which a declaration has effect—

(a) by no more than two months to align the period with—

(i) any entitlement period relating to the child in respect of whom the declaration was made,

(ii) the period for which any declaration relating to another child has effect, or

(iii) any entitlement period relating to another child, or

(b) by no more than one month for any other reason.

(3) This regulation is subject to regulation 26 (when parallel declaration ceases to have effect).

(4) In this regulation—

“another child” means—

(a)

another child of the parent of the young child in respect of whom the declaration was made, or

(b)

a child of the partner of that parent;

“entitlement period” means a period determined in accordance with section 5 of the Childcare Payments Act 2014(13) (which relates to the receipt of money towards childcare costs).

Commencement Information

I13 Reg. 25 in force at 1.12.2022, see reg. 1(b)

When a parallel declaration ceases to have effect E+W

26.—(1) This regulation applies if—

(a) a person has made a declaration in respect of a young child (“Declaration A”),

(b) Declaration A has effect (see regulation 25),

(c) another person makes a declaration in respect of the same child (“Declaration B”), and

(d) the child is, in relation to Declaration B, determined to be a qualifying child of working parents.

(2) Declaration A ceases to have effect beginning with the day on which Declaration B has effect.

Commencement Information

I14 Reg. 26 in force at 1.12.2022, see reg. 1(b)

Eligibility for childcare E+W

Period of eligibility for childcare E+W

27.—(1) A child is eligible for childcare under section 1 of the Act for the period—

(a) beginning with whichever of 1st January, 1st April or 1st September is the first date on or after the day on which a declaration in respect of the child has effect, and

(b) ending before the day on which the child ceases to be a qualifying child of working parents(14).

(2) A year begins with the date calculated in accordance with paragraph (1) for the purposes of determining in relation to the child whether the duty in section 1(1) of the Act has been discharged(15).

Commencement Information

I15 Reg. 27 in force at 1.12.2022, see reg. 1(b)

Disclosure of information E+W

Information relating to immigration and social security E+W

28.—(1) The Secretary of State may disclose to the Commissioners any information held by the Secretary of State for the purposes of their functions relating to any of the following—

(a) immigration control;

(b) social security.

(2) The Commissioners may use the information only in connection with the making of a determination as to whether a child is a qualifying child of working parents.

Commencement Information

I16 Reg. 28 in force at 1.12.2022, see reg. 1(b)

Information relating to qualifying child of working parents E+W

29.  The Secretary of State, the Commissioners and an English local authority may disclose information to each other for the purpose of checking any of the following—

(a) whether a declaration in respect of a child has been made;

(b) if a declaration in respect of a child has been made, whether the child was determined to be a qualifying child of working parents (see regulations 22 and 24);

(c) if a child was determined to be a qualifying child of working parents, whether the declaration in respect of the child has effect (see regulations 25 and 26).

Commencement Information

I17 Reg. 29 in force at 1.12.2022, see reg. 1(b)

(1)

Section 1(2)(c) of the Childcare Act 2016 defines a qualifying child of working parents as a young child who is of a description specified in regulations made by the Secretary of State. The young child must also be under compulsory school age and in England (see section 1(2)(a) and (b) of that Act).

(2)

Section 1(2)(d) of the Childcare Act 2016 defines a qualifying child of working parents as a young child in respect of whom any conditions relating to a parent of the child, which are specified in regulations made by the Secretary of State, are met.

(3)

Section 1(2)(d) of the Childcare Act 2016 defines a qualifying child of working parents as a young child in respect of whom any conditions relating to a partner of a parent of the child, which are specified in regulations made by the Secretary of State, are met.

(4)

1996 c. 18.

(5)

S.I. 1996/1919 (N.I. 16).

(6)

1965 c. 51.

(7)

1966 c. 6 (N.I.).

(8)

1975 c. 14.

(9)

1975 c. 15.

(10)

1998 c. 39.

(11)

Section 1(2)(e) of the Childcare Act 2016 defines a qualifying child of working parents as a young child in respect of whom a declaration has been made, in accordance with regulations made by the Secretary of State, to the effect that the requirements of section 1(2)(a) to (d) of that Act are satisfied.

(12)

Section 1(2)(a) and (b) of the Childcare Act 2016 define a qualifying child of working parents as a young child who is under compulsory school age and in England, respectively.

(13)

2014 c. 28.

(14)

A young child ceases to be qualifying child of working parents if the child is looked after by a local authority (see regulation 13), no declaration in respect of the child has effect (see regulation 25) or the child ceases to satisfy the requirements of section 1(2)(a) or (b) of the Childcare Act 2016 (which define a qualifying child of working parents as a young child who is under compulsory school age and in England, respectively).

(15)

Section 1(7) of the Childcare Act 2016 requires the Secretary of State to set out in regulations when a year begins for the purposes of determining in relation to a child whether the duty in section 1(1) of that Act has been discharged.