31.—(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 F1;
[F2(ba)is paid an employment and support allowance;]
(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 F3; or
(d)is credited with earnings on the grounds of incapacity for work [F4or limited capability for work] under regulation 8B of the Social Security (Credits) Regulations 1975 F5.
(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 [F6, 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,
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 estimated 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 by an organisation accredited by the Secretary of State under the scheme established by the Tax Credit (New Category of Child Care Provider) Regulations 1999 F7;
(c)by persons registered under Part 10A of the Children Act 1989 F8;
(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 F9;
(e)by—
(i)persons registered under section 7(1) of the Regulation of Care (Scotland) Act 2001 F10; or
(ii)local authorities registered under section 33(1) of that Act,
where the care provided is childminding or day care of children F11 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 to be treated as incapacitated where—
(a)he is aged not less than 80;
(b)he is aged less than 80 and—
(i)the additional conditions specified in paragraph 13 of Schedule 3 to the Housing Benefit Regulations 2006 are treated as applying in his case; and
(ii)he satisfies those conditions or would satisfy them but for his being treated as capable of work by virtue of a determination made in accordance with regulations made under section 171E of the Act F12;
[F13(ba)the claimant’s applicable amount would include the support component or the work-related activity component 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;]
(c)the claimant 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;
[F14(ca)the claimant (within the meaning of regulation 2(1)) 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 must be treated as one continuous period;]
(d)there is payable in respect of him one or more of the following—
(i)long-term incapacity benefit or short-term incapacity benefit at the higher rate specified in paragraph 2 of Part 1 of Schedule 4 to the Act F15;
(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 [F16paid 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) or (v) above;
[F17(vii)main phase employment and support allowance;]
(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 within the meaning of regulation 22(5) (applicable amounts);
(f)[F18sub-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 F19 or by Scottish Ministers under section 46 of the National Health Service (Scotland) Act 1978 F20 or provided by the Department of Health and Social Services for Northern Ireland under Article 30(1) of the Health and Personal Social Services (Northern Ireland) Order 1972 F21.
(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.
[F22(12A) For the purposes of paragraph (11), once paragraph (11)(ca) applies to the claimant, if he then ceases, for a period of 84 days or less, to have, or to be treated as having, limited capability for work, that paragraph is, on his again having, or being treated as having, limited capability for work at the end of that period, immediately thereafter to apply to him for so long as he has, or is treated as having, limited capability for 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 F23 (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 F24; 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 paragraph (1) a person on maternity leave, paternity leave or adoption leave shall be treated as if he is engaged in remunerative work for the period specified in paragraph (15) (“the relevant period”) provided that—
(a)in the week before the period of maternity leave, paternity leave or adoption leave began he was in remunerative work;
(b)the claimant is incurring relevant child care charges within the meaning of paragraph (5); and
(c)he is entitled to statutory maternity pay under section 164 of the Act, statutory paternity pay by virtue of section 171ZA or 171ZB of the Act F25, statutory adoption pay by virtue of section 171ZL of the Act F26 or maternity allowance under section 35 of the Act.
(15) 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—
(a)the date that leave ends;
(b)if no child care element of working tax credit is in payment on the date that entitlement to maternity allowance, statutory maternity pay, statutory paternity pay or statutory adoption pay ends, the date that entitlement ends; or
(c)if a child care element of working tax credit is in payment on the date that entitlement to maternity allowance, 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.
(16) In paragraph (15), “child care element” of working tax credit means the element of working tax credit prescribed under section 12 of the Tax Credits Act F27 (child care element).
Textual Amendments
F1Sections 30A to 30E were inserted by the Social Security (Incapacity for Work) Act 1994 (c. 18). Section 30A(1) was substituted by, and section 30A(2) was amended by, the Welfare Reform and Pensions Act 1999 (c. 30). Section 30B(3) was amended by the Pensions Act 1995 (c. 26) and the Tax Credits Act 2002 (c. 21). Section 30C(5) was amended by the Tax Credits Act 1999 (c. 10) and substituted by the Tax Credits Act 2002.
F2Reg. 31(2)(ba) inserted (27.10.2008) by Employment and Support Allowance (Consequential Provisions) Regulations 2008 (S.I. 2008/1082), regs. 1, 34(a)(i)
F3S.I. 1987/1967. Regulation 4ZA was inserted by S.I. 1996/206. Schedule 1B was inserted by S.I. 1996/1517. The relevant amending instruments are S.I. 1997/2197, S.I. 2000/636, S.I. 2000/1981, S.I. 2001/3070 and S.I. 2002/2689.
F4Words in reg. 31(2)(d) inserted (27.10.2008) by Employment and Support Allowance (Consequential Provisions) Regulations 2008 (S.I. 2008/1082), regs. 1, 34(a)(ii)
F5S.I. 1975/ 556.
F6Words in reg. 31(3)(a) inserted (27.10.2008) by Employment and Support Allowance (Consequential Provisions) Regulations 2008 (S.I. 2008/1082), regs. 1, 34(b)
F8 1989 c. 41; Part XA (comprising sections 79A to 79X) was inserted by section 79 of the Care Standards Act 2000 (c. 14).
F9Schedule 9A was inserted by section 79 of and Schedule 3 to the Care Standards Act 2000.
F11 See section 2(20).
F12Section 171E was inserted by section 6 of the Social Security (Incapacity for Work) Act 1994 (c. 18).
F13Reg. 31(11)(ba) inserted (27.10.2008) by Employment and Support Allowance (Consequential Provisions) Regulations 2008 (S.I. 2008/1082), regs. 1, 34(c)(i)
F14Reg. 31(11)(ca) inserted (27.10.2008) by Employment and Support Allowance (Consequential Provisions) Regulations 2008 (S.I. 2008/1082), regs. 1, 34(c)(ii)
F15Paragraph 2 was amended by the Social Security (Incapacity for Work) Act 1994.
F16Words in reg. 31(11)(d)(vi) substituted (5.1.2009) by The Social Security (Miscellaneous Amendments) (No. 7) Regulations 2008 (S.I. 2008/3157), regs. 1(1), 6(5)
F17Reg. 31(11)(d)(vii) added (27.10.2008) by Employment and Support Allowance (Consequential Provisions) Regulations 2008 (S.I. 2008/1082), regs. 1, 34(c)(iii)
F18Words in reg. 31(11)(f) substituted (19.5.2008) by Social Security (Miscellaneous Amendments) (No.2) Regulations 2008 (S.I. 2008/1042), regs. 1(2), 4(5)
F21S.I. 1972/1265(N.I.14).
F22Reg. 31(12A) inserted (27.10.2008) by Employment and Support Allowance (Consequential Provisions) Regulations 2008 (S.I. 2008/1082), regs. 1, 34(d)
F23 1948 c. 29; section 29 was amended by the National Assistance (Amendment) Act 1959 (c. 30), section 1(2); the Mental Health (Scotland) Act 1960 (c. 61), sections 113 and 114 and Schedule 4; the Social Work (Scotland) Act 1968 (c. 49), section 95(2) and Schedule 9, Part I; the Local Government Act 1972 (c. 70), sections 195(6), 272(1), Schedule 23 paragraph 2 and Schedule 30; the Employment and Training Act 1973 (c. 50), section 14(1) and Schedule 3 paragraph 3; the National Health Service Act 1977 (c. 49), section 129 and Schedule 15 paragraph 6; the Health and Social Services and Social Security Adjudications Act 1983 (c. 41), section 30 and Schedule 10 Part I; the Children Act 1989 (c. 41) section 108(5) and Schedule 13 paragraph 11(2) and the National Health Service and Community Care Act 1990 (c. 19), section 44(7).
F24 1994 c. 39. Section 2 was amended by the Environment Act 1995 (c. 25), Schedule 22, paragraph 232(1).
F25Sections 171ZA and 171ZB were inserted into the Social Security Contributions and Benefits Act 1992 by section 2 of the Employment Act 2002 (c. 22).
F26Section 171ZL was inserted by section 4 of the Employment Act 2002.