Part III Non-Contributory Benefits
Guardian’s allowance
77 Guardian’s allowance.
(1)
A person shall be entitled to a guardian’s allowance in respect of a child F1or qualifying young person if—
(a)
he is entitled to child benefit in respect of that child F2or qualifying young person, and
(b)
the circumstances are any of those specified in subsection (2) below;
F3...
(2)
The circumstances referred to in subsection (1)(b) above are—
(a)
that both of the F4parents of the child or qualifying young person are dead;
(b)
that one of the F4parents of the child or qualifying young person is dead and the person claiming a guardian’s allowance shows that he was at the date of the death unaware of, and has failed after all reasonable efforts to discover, the whereabouts of the other parent; or
(c)
that one of the F4parents of the child or qualifying young person is dead and the other is in prison.
(3)
There shall be no entitlement to a guardian’s allowance in respect of a child F5or qualifying young person unless at least one of the F6parents of the child or qualifying young person satisfies, or immediately before his death satisfied, such conditions as may be prescribed as to nationality, residence, place of birth or other matters.
(4)
Where, apart from this subsection, a person is entitled to receive, in respect of a particular child F7or qualifying young person, payment of an amount by way of a guardian’s allowance, that amount shall not be payable unless one of the conditions specified in subsection (5) below is satisfied.
(5)
Those conditions are—
(a)
that the beneficiary would be treated for the purposes of Part IX of this Act as having the child F8or qualifying young person living with him; or
(b)
that the requisite contributions are being made to the cost of providing for the child F8or qualifying young person.
(6)
The condition specified in subsection (5)(b) above is to be treated as satisfied if, but only if—
(a)
such contributions are being made at a weekly rate not less than the amount referred to in subsection (4) above—
(i)
by the beneficiary; or
(ii)
where the beneficiary is one of two spouses F9or civil partners residing together, by them together; and
(b)
except in prescribed cases, the contributions are over and above those required for the purpose of satisfying section 139(1)(b) below.
(7)
A guardian’s allowance in respect of a child F10or qualifying young person shall be payable at the weekly rate specified in Schedule 4, Part III, paragraph 5.
(8)
Regulations—
(a)
may modify subsection (2) or (3) above in relation to cases in which a child F11or qualifying young person has been adopted or is illegitimate, or the marriage of F12the parents of a child or qualifying young person has been terminated by divorce F13or the civil partnership of the F12the parents of a child or qualifying young person has been dissolved;
(b)
shall prescribe the circumstances in which a person is to be treated for the purposes of this section as being in prison (by reference to his undergoing a sentence of imprisonment for life or of a prescribed minimum duration, or to his being in legal custody in prescribed circumstances); and
(c)
may, for cases where entitlement to a guardian’s allowance is established by reference to a person being in prison, provide—
(i)
for requiring him to pay to the National Insurance Fund sums paid by way of a guardian’s allowance;
(ii)
for suspending payment of an allowance where a conviction, sentence or order of a court is subject to appeal, and for matters arising from the decision of an appeal;
(iii)
for reducing the rate of an allowance in cases where the person in prison contributes to the cost of providing for the child F11or qualifying young person.
(9)
Where F14a man and woman are married to, or civil partners of, each other and are residing together, and, apart from this subsection, they would each be entitled to a guardian’s allowance in respect of the same child F15or qualifying young person, only F16the woman shall be entitled, but payment may be made either to her or to him unless she elects in the prescribed manner that payment is not to be made to him.
(10)
Subject to subsection (11) below, no person shall be entitled to a guardian’s allowance in respect of a child F17or qualifying young person of which he or she is the parent.
(11)
Where a person—
(a)
has adopted a child F18or qualifying young person; and
(b)
was entitled to guardian’s allowance in respect of the child F18or qualifying young person immediately before the adoption,
subsection (10) above shall not terminate his entitlement.