2003 No. 495

SOCIAL SECURITY

The Guardian’s Allowance (General) Regulations 2003

Made

Laid before Parliament

Coming into force

The Treasury, in exercise of the powers conferred upon them by section 77(3), (8) and (9) of the Social Security Contributions and Benefits Act 1992 1, section 77(3), (8) and (9) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 2, and section 54(1) of the Tax Credits Act 2002 3 hereby make the following Regulations:

Citation and commencement1

These Regulations may be cited as the Guardian’s Allowance (General) Regulations 2003 and shall come into force on 7th April 2003 immediately after the commencement of section 49 of the Tax Credits Act 2002.

Interpretation2

1

In these Regulations –

  • “the Act” means the Social Security Contributions and Benefits Act 1992;

  • “adopted” means adopted pursuant to –

    1. a

      an order made in the United Kingdom, the Channel Islands or the Isle of Man;

    2. b

      an overseas adoption within the meaning of section 72(2) of the Adoption Act 19764;

    3. c

      a Convention adoption order within the meaning of section 72(1) of the Adoption Act 19765; or

    4. d

      a foreign adoption order within the meaning of section 4(3) of the Adoption (Hague Convention) Act (Northern Ireland) 19696.

  • “the Board” means the Commissioners of Inland Revenue;

  • “the Northern Ireland Act” means the Social Security Contributions and Benefits (Northern Ireland) Act 1992.

Modification to section 77(2) of the Act3

Section 77(2) of the Act and section 77(2) of the Northern Ireland Act shall be treated as modified where regulations 4 to 6 apply.

Adopted children4

1

Where a child has been adopted by two persons jointly, a reference in section 77(2) of the Act or section 77(2) of the Northern Ireland Act to the child’s parents shall be read as a reference to those two persons.

2

Where a child has been adopted by one person only, the circumstances to be satisfied in section 77(2) of the Act or section 77(2) of the Northern Ireland Act are that that person is dead.

Illegitimate children5

Where –

a

a child’s parents are unmarried at the date of the birth; and

b

paternity has not been established –

i

by a court of competent jurisdiction; or

ii

in the opinion of the determining authority,

the circumstances to be satisfied in section 77(2) of the Act or section 77(2) of the Northern Ireland Act are that the mother of the child is dead.

Children of divorced parents6

1

Where –

a

the marriage of a child’s parents has been terminated by divorce;

b

at the death of one of the parents the child was not in the custody of or maintained by the other parent;

c

there is no court order –

i

granting custody of the child to that other parent; or

ii

imposing any liability on him for the child’s maintenance; and

d

there is no maintenance assessment or maintenance calculation, as defined by section 54 of the Child Support Act 19917, or, for Northern Ireland, Article 2(2) of the Child Support (Northern Ireland) Order 19918 in force in respect of that other parent and child,

the circumstances to be satisfied in section 77(2) of the Act or section 77(2) of the Northern Ireland Act are that one of the child’s parents is dead.

2

Where a child has been adopted by two persons jointly, any reference in paragraph (1) above to the child’s parents shall be read as a reference to those two persons.

Circumstances in which a person is to be treated as being in prison7

1

The circumstances in which a person is to be treated as being in prison for the purposes of section 77 of the Act or section 77 of the Northern Ireland Act are that he is –

a

serving a custodial sentence within the meaning of section 76 of the Powers of Criminal Courts (Sentencing) Act 20009, Article 2(2) of the Criminal Justice (Northern Ireland) Order 199610 or a sentence of detention or imprisonment within the meaning of section 307(1) of the Criminal Procedure (Scotland) Act 199511, with not less than 2 years remaining from the death of the other parent; or

b

detained in a hospital by order of the court under –

i

section 37(1)12, 38, or 45A13 of the Mental Health Act 1983;

ii

section 5 of the Criminal Procedure (Insanity) Act 196414;

iii

section 6 or 14 of the Criminal Appeal Act 196815;

iv

section 57, 58 or 59A of the Criminal Procedure (Scotland) Act 199516;

v

Article 44, 45, 50A, or 51(2) and (3) of the Mental Health (Northern Ireland) Order 198617; or

vi

section 11 or 13(5A) and (6) of the Criminal Appeal (Northern Ireland) Act 1980 18.

2

In calculating the length of the sentence for the purposes of paragraphs (1)(a) above and (4) below –

a

disregard any reduction made to the length of the sentence to take account of any period spent in custody prior to sentencing; and

b

include any period spent in custody immediately prior to sentencing, save that where he is serving a custodial sentence or sentence of detention or imprisonment with the meaning of paragraph (1)(a) above immediately prior to sentencing, include only such period of that sentence as remains following sentencing for the later sentence,

but nothing in this paragraph shall permit the payment of guardian’s allowance in respect of any period in custody prior to sentencing.

3

Subject to paragraph (4) below, a person shall not cease to be treated as being in prison in accordance with paragraph (1) above by virtue of the fact that he is temporarily released, unlawfully at large, or, in the case of a person serving a sentence, transferred to a hospital.

4

A person serving a sentence in accordance with paragraph (1)(a) above shall cease to be treated as being in prison in accordance with that paragraph where –

a

he is released on licence, the remainder of his sentence is remitted, his sentence is reduced on appeal to a term of less than 2 years, or his conviction is quashed on appeal; or

b

he is not in custody and has not been in custody for a period at least equal to the remaining period of his sentence,

but that where a person to whom sub-paragraph (b) applies returns to prison to serve the remainder of the sentence, the length of the sentence for the purposes of paragraph (1)(a) above shall be the period of the remainder of the sentence.

5

This regulation shall apply, subject to the necessary modifications, to a parent who is outside Great Britain or Northern Ireland and serving a custodial sentence with not less than 2 years remaining from the death of the other parent or detained in a hospital by a court order.

Rate of allowance and payment to the National Insurance Fund or the Northern Ireland National Insurance Fund8

1

Where a person treated as being in prison for the purposes of section 77 of the Act or section 77 of the Northern Ireland Act contributes to the cost of providing for a child, the weekly rate of any guardian’s allowance payable shall be reduced by the amount of the contribution made in the week preceding the week for which any allowance is payable.

2

In a case where entitlement to guardian’s allowance is established by reference to a person being in prison, that person shall, on notice being given by the Board, pay to the National Insurance Fund or the Northern Ireland National Insurance Fund an amount equal to that paid by way of guardian’s allowance.

Residence condition9

1

There shall be no entitlement to guardian’s allowance in respect of a child unless at least one of the child’s parents –

a

was born in the United Kingdom; or

b

at the date of death of the parent whose death gives rise to the claim for guardian’s allowance, has, in any two year period since the age of 16, spent at least 52 weeks of that period in Great Britain or Northern Ireland, as the case may require.

2

For the purposes of paragraph (1)(b) above, a person shall be treated as being present in Great Britain or Northern Ireland (as the case may require) where –

a

his absence is by virtue of his employment –

i

as a serving member of the forces within the meaning of regulation 140 of the Social Security (Contributions) Regulations 200119;

ii

as an airman within the meaning of regulation 111 of those Regulations; or

iii

as a mariner within the meaning of regulation 115 of those Regulations; or

b

his absence is by virtue of his employment and that employment is prescribed employment within the meaning of regulation 114(1) of those Regulations (continental shelf operations).

3

Where a child has been adopted by two persons jointly, any reference in paragraph (1) above to the child’s parents shall be read as a reference to those two parents, and where a child has been adopted by one person only, that person must satisfy the requirement of paragraph (1) above.

4

Where regulation 5 applies, the child’s mother must satisfy the requirement of paragraph (1) above.

Prescribed manner of making an election under section 77(9) of the Act or section 77(9) of the Northern Ireland Act10

1

An election under section 77(9) of the Act or section 77(9) of the Northern Ireland Act (payment of guardian’s allowance not to be made to a husband) must –

a

be in writing, and

b

be made either –

i

on a form approved by the Board, or

ii

in such other manner as the Board may accept as sufficient in the circumstances of the particular case.

2

In relation to guardian’s allowance under the Act, notice of the election must be given to –

a

the Child Benefit Office, Waterview Park, Washington, Tyne and Wear; or

b

any Inland Revenue Enquiry Centre.

3

In relation to guardian’s allowance under the Northern Ireland Act, notice of the election must be given to –

a

the Child Benefit Office (Northern Ireland), Windsor House, Bedford Street, Belfast; or

b

any Inland Revenue Enquiry Centre.

4

An election may be given by means of electronic communication in accordance with Schedule 2 to the Child Benefit and Guardian’s Allowance (Administration) Regulations 200320.

Revocations11

The Regulations specified in column (1) of the Schedule are revoked to the extent mentioned in column (3) of the Schedule.

Nick AingerJim FitzpatrickTwo of the Lords Commissioners of Her Majesty’s Treasury

SCHEDULEREVOCATIONS

PART 1REVOCATIONS APPLICABLE TO GREAT BRITAIN

(1) Regulations revoked

(2) References

(3) Extent of revocation

The Social Security (Guardian’s Allowances) Regulations 1975

S.I. 1975/515

The whole of the Regulations

The Social Security (Child Benefit Consequential) Regulations 1977

S.I. 1977/342

Regulation 9

The Social Security (Guardian’s Allowances) Amendment Regulations 1985

S.I. 1985/1327

The whole of the Regulations

The Social Security (National Insurance Number Information: Exemption) Regulations 1997

S.I. 1997/2676

Regulation 7

The Social Security (Guardian’s Allowances) Amendment Regulations 1998

S.I. 1998/1811

The whole of the Regulations

The Social Security Act 1998 (Commencement No 8, and Savings and Consequential and Transitional Provisions) Order 1999

S.I. 1999/1958

Article 4(2) and Schedule 2

The Social Security (National Insurance Number Information: Exemption) Regulations 2000

S.I. 2000/1082

Regulation 3

The Child Support (Consequential Amendments and Transitional Provisions) Regulations 2001

S.I. 2001/158

In regulation 2, the definition of “the Guardian”s Allowances Regulations', and Regulation 5

The Social Security (Guardian’s Allowances) Amendment Regulations 2002

S.I. 2002/492

The whole of the Regulations

The Social Security (Electronic Communications) (Child Benefit) Order 2002

S.I. 2002/1789

Regulation 7

PART 2REVOCATIONS APPLICABLE TO NORTHERN IRELAND

The Social Security (Guardian’s Allowances) Regulations (Northern Ireland) 1975

S.R. 1975 No. 98

The whole of the Regulations

The Social Security (Child Benefit Consequential) Regulations (Northern Ireland) 1977

S.R. 1977 No. 73

Regulation 9

The Social Security (Guardian’s Allowances) (Amendment) Regulations (Northern Ireland) 1985

S.R. 1985 No. 227

The whole of the Regulations

The Social Security (Guardian’s Allowances) (Amendment) Regulations (Northern Ireland) 1998

S.R. 1998 No. 263

The whole of the Regulations

The Social Security (1998 Order) (Commencement No. 7 and Savings, Consequential and Transitional Provisions) Order (Northern Ireland) 1999

S.R. 1999 No. 310 (C. 23)

Article 5

The Child Support (Consequential Amendments and Transitional Provisions) Regulations (Northern Ireland) 2001

S.R. 2001 No. 29

In regulation 1(3), the definition of “the Guardian”s Allowances Regulations', and regulations 2 and 9(1)(a)

The Social Security (Guardian’s Allowances) (Amendment) Regulations (Northern Ireland) 2002

S.R. 2002 No. 87

The whole of the Regulations

(This note is not part of the Regulations)

These Regulations make provisions in respect of guardian’s allowance.

Regulation 1 provides for the commencement and citation of these Regulations, and Regulation 2 for the interpretation of certain terms used in them.

Regulations 3 to 6 modify, in cases where a child is adopted, illegitimate, or of divorced parents, the circumstances in section 77(2) of the Social Security Contributions and Benefits Act 1992 (“the Act”) or section 77 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 (“the Northern Ireland Act”) which must be satisfied before a person is entitled to claim guardian’s allowance in respect of that child.

Regulation 7 prescribes the circumstances in which a person is to be treated as being in prison for the purposes of section 77 of the Act or section 77 of the Northern Ireland Act.

Regulation 8(1) provides for the rate of guardian’s allowance to be reduced by reference to the contributions of a person in prison. Regulation 8(2) provides for a person in prison to reimburse the National Insurance Fund or the Northern Ireland National Insurance Fund in respect of sums paid by way of guardian’s allowance.

Regulation 9 prescribes conditions as to place of birth and residence, of which at least one must be satisfied by at least one of a child’s parents before a person is entitled to claim guardian’s allowance in respect of that child. Regulation 9(3) modifies this requirement where a child is adopted, and Regulation 9(4) modifies this requirement where a child is illegitimate.

Regulation 10 prescribes the manner in which a wife may elect for any payment of guardian’s allowance not to be made to her husband.