Part VIMembership of the Family
Persons of a prescribed description
76.—(1) Subject to paragraph (2), a person of a prescribed description for the purposes of the definition of “family” in Article 2(2) of the Order (interpretation) is a person aged 16 or over but under 19 who is treated as a child for the purposes of section 138 of the Benefits Act (meaning of “child”), and in these Regulations, except in Part IV such a person is referred to as a “young person”.
(2) Paragraph (1) shall not apply to a person who is—
(a)on a course of advanced education;
(b)entitled to a jobseeker’s allowance or would, but for Article 5(1)(d) of the Order (provision against dual entitlement), be so entitled, or
(c)entitled to income support or would, but for section 130(2) of the Benefits Act (exclusion from benefit) be so entitled.
Circumstances in which a person is to be treated as responsible or not responsible for another
77.—(1) Subject to paragraphs (2) to (5), a person is to be treated for the purposes of the Order as responsible for a child or young person for whom he is receiving child benefit.
(2) In a case where a child (“the first child”) is in receipt of child benefit in respect of another child (“the second child”), the person treated as responsible for the first child in accordance with the provisions of this regulation shall also be treated as responsible for the second child.
(3) In the case of a child or young person in respect of whom no person is receiving child benefit, the person who shall be treated as responsible for that child or young person shall be—
(a)except where sub-paragraph (b) applies, the person with whom the child or young person usually lives, or
(b)where only one claim for child benefit has been made in respect of the child or young person, the person who made that claim.
(4) Where regulation 78(7) (circumstances in which a person is to be treated as being or not being a member of the household) applies in respect of a child or young person, that child or young person shall be treated as the responsibility of the claimant for that part of the week for which he is under that regulation treated as being a member of the claimant’s household.
(5) Except where paragraph (4) applies, a child or young person shall be treated as the responsibility of only one person in any benefit week and any person other than the one treated as responsible for the child or young person under this regulation shall be treated as not so responsible.
Circumstances in which a person is to be treated as being or not being a member of the household
78.—(1) Subject to paragraphs (2) to (5), the claimant and any partner and, where the claimant or his partner is treated as responsible under regulation 77 (circumstances in which a person is to be treated as responsible or not responsible for another) for a child or young person, that child or young person and any child of that child or young person shall be treated for the purposes of the Order as members of the same household notwithstanding that any of them is temporarily living away from the other members of his family.
(2) Paragraph (1) shall not apply to a person who is living away from the other members of his family where—
(a)that person does not intend to resume living with the other members of his family, or
(b)his absence from the other members of his family is likely to exceed 52 weeks, unless there are exceptional circumstances (for example the person is in hospital or otherwise has no control over the length of his absence), and the absence is unlikely to be substantially more than 52 weeks.
(3) Paragraph (1) shall not apply in respect of any member of a couple or of a polygamous marriage where—
(a)one, both or all of them are patients detained in accommodation provided under Article 110 of the Mental Health (Northern Ireland) Order 1986(1);
(b)one, both or all of them are detained in custody pending trial or sentence upon conviction or whilst serving a sentence imposed by a court;
(c)the claimant is abroad and does not satisfy the conditions of regulation 50 (persons temporarily absent from Northern Ireland), or
(d)one of them is permanently in residential accommodation or a residential care home or a nursing home.
(4) A child or young person shall not be treated as a member of the claimant’s household where he is—
(a)boarded out with the claimant or his partner under a relevant enactment;
(b)boarded out with the claimant or his partner prior to adoption, or
(c)placed for adoption with the claimant or his partner pursuant to a decision under the Adoption Agencies Regulations (Northern Ireland) 1989(2).
(5) Subject to paragraphs (6) and (7), paragraph (1) shall not apply to a child or young person who is not living with the claimant and who—
(a)in a case which does not fall within sub-paragraph (b) has been continuously absent from Northern Ireland for a period of more than 4 weeks commencing—
(i)where he went abroad before the date of a claim for a jobseeker’s allowance, with, and including, that date;
(ii)in any other case, on and including the day which immediately follows the day on which he went abroad;
(b)where regulation 50(5) or paragraph 11 or 13 of Schedule 4 (temporary absence abroad for the treatment of a child or young person) applies, has been continuously absent from Northern Ireland for a period of more than 8 weeks, that period of 8 weeks commencing—
(i)where he went abroad before the date of the claim for a jobseeker’s allowance, on and including the date of that claim;
(ii)in any other case, on and including the day which immediately follows the day on which he went abroad;
(c)has been an in-patient or in accommodation provided under any of the provisions referred to in any of sub-paragraphs (a) to (c) of the definition of residential accommodation in regulation 85(4) for a continuous period of more than 12 weeks commencing—
(i)where he became an in-patient or, as the case may be, entered that accommodation before the date of the claim for a jobseeker’s allowance, with, and including, that date, or
(ii)in any other case, with, and including, the date on which he became an in-patient or entered that accommodation,
and, in either case, has not been in regular contact with either the claimant or any member of the claimant’s household;
(d)is in the care of the Department under a relevant enactment;
(e)has been boarded out with a person other than the claimant prior to adoption;
(f)has been placed for adoption pursuant to a decision under the Adoption Agencies Regulations (Northern Ireland) 1989;
(g)is detained in custody pending trial or sentence upon conviction or under a sentence imposed by a court, or
(h)is in a training school within the meaning of section 137 of the Children and Young Persons Act (Northern Ireland) 1968(3).
(6) In the case of a person who was entitled to income support immediately before his entitlement to a jobseeker’s allowance commenced, paragraph (5)(a), (b) and (c) shall have effect as if head (i) was omitted from each.
(7) A child or young person to whom any of the circumstances mentioned in paragraph (5)(d), (g) or (h) applies shall be treated as being a member of the claimant’s household only for that part of any benefit week where that child or young person lives with the claimant.
(8) Where a child or young person for the purposes of attending the educational establishment at which he is receiving relevant education is living with the claimant or his partner and neither one is treated as responsible for that child or young person that child or young person shall be treated as being a member of the household of the person treated as responsible for him and shall not be treated as a member of the claimant’s household.
(9) In this regulation “relevant enactment” means the Guardianship of Infants Act 1886(4), the Army Act 1955(5), the Air Force Act 1955(6), the Naval Discipline Act 1957(7), the Children and Young Persons Act (Northern Ireland) 1968, the Health and Personal Social Services (Northern Ireland) Order 1972(8), the Family Law Reform (Northern Ireland) Order 1977(9), the Matrimonial Causes (Northern Ireland) Order 1978(10), the Domestic Proceedings (Northern Ireland) Order 1980(11), the Adoption (Northern Ireland) Order 1987(12) and the Children (Northern Ireland) Order 1995(13).