PART 6Income and capital
CHAPTER 3Income
Treatment of child care charges28
1
F4Subject to paragraph (1A), this regulation applies where an applicant is incurring relevant child care charges and—
a
is a lone parent and is engaged in remunerative work;
b
is a member of a couple where both are engaged in remunerative work; or
c
is a member of a couple where one member is engaged in remunerative work and the other—
i
is incapacitated as described in paragraph (11);
ii
is a patient; or
iii
is in prison (whether serving a custodial sentence or remanded in custody awaiting trial or sentence).
F51A
This regulation does not apply where an applicant or an applicant’s partner has, or the partners jointly have, an award of universal credit.
2
For the purposes of paragraph (1) and subject to paragraph (4), a person to whom paragraph (3) applies is to be treated as engaged in remunerative work for a period not exceeding 28 weeks during which the person—
a
is paid statutory sick pay;
b
is paid short-term incapacity benefit at the lower rate under section 30A of the 1992 Act M1;
c
is paid an employment and support allowance;
d
is paid income support on the grounds of incapacity for work under regulation 4ZA of, and paragraph 7 or 14 of Schedule 1B to, the Income Support Regulations M2; or
e
is credited with earnings on the grounds of incapacity for work or limited capability for work under regulation 8B of the Social Security (Credits) Regulations 1975 M3.
3
This paragraph applies to a person who was engaged in remunerative work immediately before as the case may be—
a
the first day of the period in respect of which the person was first paid statutory sick pay, short-term incapacity benefit, an employment and support allowance or income support on the grounds of incapacity for work; or
b
the first day of the period in respect of which earnings are credited.
4
In a case to which paragraph (2)(d) or (e) applies, the period of 28 weeks begins on the day on which the person is first paid income support or on the first day of the period in respect of which earnings are credited, as the case may be.
5
Relevant child care charges are the charges for care referred to in paragraphs (6) and (7) and they must be calculated on a weekly basis in accordance with paragraph (10).
6
The charges referred to in paragraph (5) are charges for care which is provided—
a
in the case of any child of the applicant's family who is not disabled, in respect of the period beginning on that child's date of birth and ending on the day preceding the first Monday in September following that child's fifteenth birthday; or
b
in the case of any child of the applicant's family who is disabled, in respect of the period beginning on that child's date of birth and ending on the day preceding the first Monday in September following their sixteenth birthday.
7
The charges referred to in paragraph (5) are charges for care which is provided by one or more of the care providers listed in paragraph (8) and not paid—
a
in respect of the child's compulsory education;
b
by an applicant to a partner or by a partner to an applicant in respect of any child for whom either or any of them is responsible in accordance with regulation 10 (responsibility for another person); or
c
in respect of care provided by a relative of the child wholly or mainly in the child's home.
8
The care to which paragraph (7) refers may be provided—
a
out of school hours, by a school on school premises or by a local authority—
i
for a child who is not disabled, in respect of the period beginning on the child's eighth birthday and ending on the day preceding the first Monday in September following the child's fifteenth birthday; or
ii
for a child who is disabled, in respect of the period beginning on the child's eighth birthday and ending on the day preceding the first Monday in September following their sixteenth birthday;
b
by a child care provider approved in accordance with the Tax Credit (New Category of Child Care Provider) Regulations 1999 M4;
c
by persons registered under Part 2 of the Children and Families (Wales) Measure 2010 M5;
d
by a person who is excepted from registration under Part 2 of the Children and Families (Wales) Measure 2010 because the child care the person provides is in a school or establishment referred to in article 11, 12 or 14 of the Child Minding and Day Care Exceptions (Wales) Order 2010 M6;
e
by—
i
persons registered under section 59(1) of the Public Services Reform (Scotland) Act 2010;
ii
local authorities registered under section 83(1) of that Act, where the care provided is child minding or day care of children within the meaning of that Act;
f
by a person prescribed in regulations made pursuant to section 12(4) of the Tax Credits Act 2002 M7;
g
by a person who is registered under chapter 2 or 3 of Part 3 of the Childcare Act 2006 M8;
h
by any of the schools mentioned in section 34(2) of the Childcare Act 2006 in circumstances where the requirement to register under chapter 2 of Part 3 of that Act does not apply by virtue of that subsection;
i
by any of the schools mentioned in section 53(2) of the Childcare Act 2006 M9 in circumstances where the requirement to register under chapter 3 of Part 3 of that Act does not apply by virtue of that subsection;
j
by any of the establishments mentioned in section 18(5) of the Childcare Act 2006 M10 in circumstances where the care is not included in the meaning of “childcare” for the purposes of Parts 1 and 3 of that Act by virtue of that subsection;
k
by a foster carer or kinship carer approved under the Looked After Children (Scotland) Regulations 2009 M11 in relation to a child other than a child who has been placed with that carer—
i
by virtue of a requirement of the children's hearing under section 70(3)(a) of the Children (Scotland) Act 1995 M12;
ii
by a local authority exercising the right to determine the residence of a child in respect of whom a permanence order has been granted under section 81 of the Adoption and Children (Scotland) Act 2007 M13; or
iii
in accordance with the Looked After Children (Scotland) Regulations 2009;
l
m
n
by a person who is not a relative of the child wholly or mainly in the child's home.
9
In paragraphs (6) and (8)(a) “the first Monday in September” means the Monday which first occurs in the month of September in any year.
10
Relevant child care charges must be estimated over a period, not exceeding a year, that is appropriate to allow the average weekly charge to be estimated accurately having regard to information about the amount of that charge provided by the person providing the care.
11
For the purposes of paragraph (1)(c), the other member of a couple is incapacitated where—
a
the applicant's applicable amount includes a disability premium under paragraph 9 of Schedule 1 on account of the other member's incapacity or the work-related activity component under paragraph 21 of that Schedule or the support component under paragraph 22 of that Schedule on account of that other member having limited capability for work;
b
the applicant's applicable amount would include a disability premium under paragraph 9 of Schedule 1 on account of the other member's incapacity but for that other member being treated as capable of work by virtue of a determination made in accordance with regulations made under section 171E of the 1992 Act M18;
c
the applicant's applicable amount would include the support component under paragraph 22 of Schedule 1 or the work-related activity component under paragraph 21 of Schedule 1 on account of the other member having limited capability for work but for that other member being treated as not having limited capability for work by virtue of a determination made in accordance with the Employment and Support Allowance Regulations;
d
the applicant is, or is treated as, incapable of work and has been incapable, or treated as incapable, of work in accordance with the provisions of, and regulations made under, Part 12A M19 of the 1992 Act (incapacity for work) for a continuous period of not less than 196 days, and for this purpose any two or more separate periods separated by a break of not more than 56 days are to be treated as one continuous period;
e
the applicant has, or is treated as having, limited capability for work and has had, or been treated as having, limited capability for work in accordance with the Employment and Support Allowance Regulations for a continuous period of not less than 196 days, and for this purpose any two or more separate periods separated by a break of not more than 84 days are to be treated as one continuous period;
f
there is payable in respect of the other member one or more of the following pensions or allowances—
i
long-term incapacity benefit or short-term incapacity benefit at the higher rate under Schedule 4 to the 1992 Act M20;
ii
attendance allowance under section 64 of the 1992 Act M21;
iii
severe disablement allowance under section 68 of the 1992 Act M22;
iv
disability living allowance;
F1iva
armed forces independence payment;
v
personal independence payment;
vi
increase of disablement pension under section 104 of the 1992 Act;
vii
a pension increase paid as part of a war disablement pension or under an industrial injuries scheme which is analogous to an allowance or increase of disablement pension under head (ii), (iv), (v) or (vi) above; or
viii
main phase employment and support allowance;
g
a pension or allowance to which sub-paragraph (f)(ii), (iv), (v)F3, (vi) or (vii) refers was payable on account of the other member's incapacity but has ceased to be payable in consequence of the other member becoming a patient, which in this regulation means a person (other than a person who is serving a sentence of imprisonment or detention in a youth custody institution) who is regarded as receiving free in-patient treatment within the meaning of regulation 2(4) and (5) of the Social Security (Hospital In-Patients) Regulations 2005 M23;
h
sub-paragraph (f) or (g) would apply to the other member if the legislative provisions referred to in those sub-paragraphs were provisions under any corresponding enactment having effect in Northern Ireland; or
i
the other member has an invalid carriage or other vehicle provided under section 46 of the National Health Service (Scotland) Act 1978 M24, paragraph 9(1) of Schedule 1 to the National Health Service Act 2006 M25 or article 30(1) of the Health and Personal Social Services (Northern Ireland) Order 1972 M26.
12
Where paragraph (11)(d) applies and the applicant ceases to be, or to be treated as, incapable of work but within a period of 56 days or less of that cessation the applicant is, or is treated as, incapable of work, paragraph 11(d) applies from the time the applicant is again, or is again treated as, incapable of work for so long as the applicant is, or is treated as, incapable of work.
13
Where paragraph (11)(e) applies and the applicant ceases, to have, or to be treated as having, limited capability for work but within a period of 84 days or less of that cessation the applicant has, or is treated as having, limited capability for work, paragraph 11(e) applies from the time the applicant has again, or is again treated as having, limited capability for work for so long as that situation continues.
14
For the purposes of paragraphs (6) and (8)(a), a person is disabled if the person is a person—
a
in respect of whom disability living allowance or personal independence payment is payable, or has ceased to be payable solely because the person is a patientF2, or in respect of whom armed forces independence payment is payable;
b
who has been certified as blind and in consequence is registered as blind in a register maintained by or on behalf of a local authority in Scotland or is registered as blind in a register compiled under section 29 of the National Assistance Act 1948 M27 (welfare services) M28F13or is registered as severely sight impaired in a register kept by a local authority in Wales under section 18(1)(a) of the Social Services and Well-being (Wales) Act 2014; or
c
who ceased to be registered as blind in such a register within the period beginning 28 weeks before the first Monday in September following the person's fifteenth birthday and ending on the day preceding the person's sixteenth birthday.
15
For the purposes of paragraph (1) a person on maternity leave, paternity leaveF6, shared parental leave or adoption leave is to be treated as if engaged in remunerative work for the period specified in paragraph (16) (“the relevant period”) provided that—
a
in the week before the period of maternity leave, paternity leaveF6, shared parental leave or adoption leave began the person was in remunerative work;
b
the person is incurring relevant child care charges; and
c
the person is entitled to either statutory maternity pay under section 164 of the 1992 Act M29, F10statutory paternity pay by virtue of section 171ZA or 171ZB of the 1992 ActF11..., F7statutory shared parental pay, statutory adoption pay by virtue of section 171ZL of the 1992 Act M30, maternity allowance under section 35 of the 1992 Act M31 or qualifying support.
16
For the purposes of paragraph (15) the relevant period begins on the day on which the person's maternity leave, paternity leaveF8, shared parental leave or adoption leave commences and ends on the earliest of the following dates—
a
the date that leave ends;
b
c
if a child care element of working tax credit is in payment on the date that entitlement to maternity allowance or qualifying support, statutory maternity pay, F12...statutory paternity payF9, statutory shared parental pay or statutory adoption pay ends, the date that entitlement to that award of the child care element of the working tax credit ends.
17
In this regulation—
a
“qualifying support” means income support to which the person is entitled by virtue of paragraph 14B of Schedule 1B to the Income Support Regulations; and
b
“child care element of working tax credit” means the element of working tax credit prescribed under section 12 of the Tax Credits Act 2002 (child care element).