PART 6Income and capital
SECTION 2Income
Treatment of child care charges28
1
This regulation applies where a claimant 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 both of whom 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;
ii
is an in-patient in hospital; or
iii
is in prison (whether serving a custodial sentence or remanded in custody awaiting trial or sentence).
2
For the purposes of paragraph (1) and subject to paragraph (4), a person to whom paragraph (3) applies shall be treated as engaged in remunerative work for a period not exceeding 28 weeks during which he—
a
is paid statutory sick pay;
b
is paid short-term incapacity benefit at the lower rate under sections 30A to 30E of the Act M1;
c
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
d
is credited with earnings on the grounds of incapacity 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—
a
the first day of the period in respect of which he was first paid statutory sick pay, short-term incapacity benefit 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,
as the case may be.
4
In a case to which paragraph (2)(c) or (d) 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 those charges for care to which paragraphs (6) and (7) apply, and shall be calculated on a weekly basis in accordance with paragraph (10).
6
The charges are paid by the claimant for care which is provided—
a
in the case of any child of the claimant'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 claimant's family who is disabled, in respect of the period beginning on that person's date of birth and ending on the day preceding the first Monday in September following that person's sixteenth birthday.
7
The charges are paid for care which is provided by one or more of the care providers listed in paragraph (8) and are not paid—
a
in respect of the child's compulsory education;
b
by a claimant to a partner or by a partner to a claimant in respect of any child for whom either or any of them is responsible in accordance with regulation 20 (circumstances in which a person is treated as responsible or not responsible for another); or
c
in respect of care provided by a relative of a 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 children who are not disabled in respect of the period beginning on their eighth birthday and ending on the day preceding the first Monday in September following their fifteenth birthday; or
ii
for children who are disabled in respect of the period beginning on their 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 10A of the Children Act 1989 M5; or
d
in schools or establishments which are exempted from registration under Part 10A of the Children Act 1989 by virtue of paragraph 1 or 2 of Schedule 9A to that Act; or
e
by—
i
persons registered under section 7(1) of the Regulation of Care (Scotland) Act 2001 M6; or
ii
local authorities registered under section 33(1) of that Act,
where the care provided is child minding or daycare of children within the meaning of that Act; or
f
by a person prescribed in regulations made pursuant to section 12(4) of the Tax Credits Act.
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 shall be estimated over such period, not exceeding a year, as is appropriate in order that the average weekly charge may be estimated accurately having regard to information as to the amount of that charge provided by the child minder or person providing the care.
11
For the purposes of paragraph (1)(c) the other member of a couple is incapacitated where—
a
F3the claimant’s applicable amount includes a disability premium on account of the other member’s incapacity;—
i
a disability premium; or
ii
a higher pensioner premium by virtue of the satisfaction of paragraph 11(2)(b) of Schedule 3,
on account of the other member's incapacity;
b
c
the claimant (within the meaning of regulation 2) is, or is treated as, incapable of work and has been so incapable, or has been so treated as incapable, of work in accordance with the provisions of, and regulations made under, Part 12A of the 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 shall be treated as one continuous period;
d
there is payable in respect of him 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 Act;
ii
attendance allowance under section 64 of the Act;
iii
severe disablement allowance under section 68 of the Act;
iv
disability living allowance under section 71 of the Act;
v
increase of disablement pension under section 104 of the Act;
vi
a pension increase under a war pension scheme or an industrial injuries scheme which is analogous to an allowance or increase of disablement pension under head (ii), (iv) or (v) above;
e
a pension or allowance to which head (ii), (iv), (v) or (vi) of sub-paragraph (d) above refers was payable on account of his incapacity but has ceased to be payable in consequence of his becoming a patient F1, which in this regulation shall mean 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 F2regulation 2(4) and (5) of the Social Security (Hospital In-Patients) Regulations 2005;
f
sub-paragraph (d) or (e) would apply to him if the legislative provisions referred to in those sub-paragraphs were provisions under any corresponding enactment having effect in Northern Ireland; or
g
he has an invalid carriage or other vehicle provided to him by the Secretary of State under section 5(2)(a) of and Schedule 2 to the National Health Service Act 1977 M8or by Scottish Ministers under section 46 of the National Health Service (Scotland) Act 1978 M9or provided by the F5Department of Health, Social Services and Public Safety in Northern Ireland under Article 30(1) of the Health and Personal Social Services (Northern Ireland) Order 1972.
12
For the purposes of paragraph (11), once paragraph (11)(c) applies to the claimant, if he then ceases, for a period of 56 days or less, to be incapable, or to be treated as incapable, of work, that paragraph shall, on his again becoming so incapable, or so treated as incapable, of work at the end of that period, immediately thereafter apply to him for so long as he remains incapable, or is treated as remaining incapable, of work.
13
For the purposes of paragraphs (6) and (8)(a), a person is disabled if he is a person—
a
in respect of whom disability living allowance is payable, or has ceased to be payable solely because he is a patient;
b
who is registered as blind in a register compiled under section 29 of the National Assistance Act 1948 M10 (welfare services) or, in Scotland, has been certified as blind and in consequence he is registered as blind in a register maintained by or on behalf of a council constituted under section 2 of the Local Government (Scotland) Act 1994 M11; 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 that person's fifteenth birthday and ending on the day preceding the first Monday in September following that person's sixteenth birthday.
14
For the purposes of—
a
paragraph (1) a person on maternity leave, paternity leave or adoption leave shall be treated as if she is engaged in remunerative work for the period specified in sub-paragraph (b) (“the relevant period”) provided that—
i
in the week before the period of maternity leave, paternity leave or adoption leave began she was in remunerative work;
ii
the claimant is incurring relevant child care charges within the meaning of paragraph (5); and
b
sub-paragraph (a) the relevant period shall begin on the day on which the person's maternity leave, paternity leave or adoption leave commences and shall end on—
i
the date that leave ends;
ii
if no child care element of working tax credit is in payment on the date that entitlement to maternity allowance, qualifying support, statutory maternity pay, statutory paternity pay or statutory adoption pay ends, the date that entitlement ends; or
iii
if a child care element of working tax credit is in payment on the date that entitlement to maternity allowance, qualifying support, statutory maternity pay, statutory paternity pay or statutory adoption pay ends, the date that entitlement to that award of the child care element of working tax credit ends,
whichever shall occur first.
15
In paragraph (14)—
a
“qualifying support” means income support to which that person is entitled by virtue of paragraph 14B of Schedule 1B to the Income Support Regulations M14; 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 (child care element).