Draft Regulations laid before Parliament under section 70(3) of the Childcare Payments Act 2014, for approval by resolution of each House of Parliament.
2015 No.
The Childcare Payments (Eligibility) Regulations 2015
Made
Coming into force in accordance with regulation 1
The Treasury make the following Regulations, in exercise of the powers conferred by sections 2(3)(b) to (d), 3(4) and (5), 7(3), 8(2), 9(2) and (3), 10(2), (3) and (4), 14, 32(5), 33(5) and 69(2) and (4) of the Childcare Payments Act 20141.
In accordance with section 70(3) of that Act, a draft of this instrument was laid before Parliament and approved by resolution of each House of Parliament.
Citation and commencement1
These Regulations may be cited as the Childcare Payments (Eligibility) Regulations 2015 and come into force on the day after the day on which they are made.
Interpretation2
In these Regulations—
“the Act” means the Childcare Payments Act 2014, and a reference without more to a numbered section is a reference to the section of the Act bearing that number;
“another EEA state” means any EEA state apart from the United Kingdom;
“armed forces independence payment” means armed forces independence payment under the Armed Forces and Reserve Forces (Compensation Scheme) Order 20112;
“disability living allowance” means disability living allowance under sections 71 to 76 of the Social Security Contributions and Benefits Act 19923 or sections 71 to 76 of the Social Security Contributions and Benefits (Northern Ireland) Act 19924;
“employed”, except in the expression “self-employed”, means engaged under a contract of service or in an office (including an elected office) or so engaged as a United Kingdom resident working overseas;
“minimum weekly income” means the amount a person would be paid for 8 hours of work a week at the hourly rate set out in regulation 11 or 13 of the National Minimum Wage Regulations 19995;
“paid work” means work done for payment or in expectation of payment and does not include being engaged by a charitable or voluntary organisation, or as a volunteer, in circumstances in which the payment received by or due to be paid to the person is in respect of expenses;
“partner” has the meaning given in regulation 3;
“personal independence payment” means a personal independence payment under Part 4 of the Welfare Reform Act 20126;
“prisoner” means—
- a
a person who is detained in custody pending trial or sentence upon conviction or under a sentence imposed by a court; or
- b
a person who is on temporary release in accordance with the provisions of the Prison Act 19527, the Prisons (Scotland) Act 19898 or the Prison Act (Northern Ireland) 19539,
other than a person who is detained in hospital under the provisions of the Mental Health Act 198310, in Scotland under the provisions of the Mental Health (Care and Treatment) (Scotland) Act 200311 or the Criminal Procedure (Scotland) Act 199512 or, in Northern Ireland, under articles 12 to 17 of the Mental Health (Northern Ireland) Order 198613;
- a
“self-employed” means engaged in carrying on a trade, profession or vocation on a commercial basis and with a view to profit, either on one’s own account or as a member of a business partnership;
“week” means a period of seven days starting with midnight between Saturday and Sunday.
Eligible persons: partners3
1
For the purposes of the Act two people are regarded as partners at any time if they are both at least 16 years old at that time and either—
a
they are married to, or civil partners of, each other and are members of the same household; or
b
they are not married to, or civil partners of, each other but are living together as a married couple or as civil partners.
2
Where two people are parties to a polygamous marriage, they are not regarded as partners for the purposes of the Act if—
a
one of them is party to an earlier marriage that still subsists; and
b
the other party to that earlier marriage is living in the same household.
3
A person’s partner who is temporarily absent from the person’s household at the date of the declaration of eligibility is not to be regarded as the person’s partner for the purposes of the Act if—
a
the absence exceeds, or is expected to exceed, 6 months; or
b
the absent person is a prisoner.
4
In this regulation, “polygamous marriage” means a marriage during which a party to it is married to more than one person and which took place under the laws of a country which permits polygamy.
When a person is regarded as responsible for a child4
1
For the purposes of the Act, a person is regarded as responsible for a child who normally lives with the person.
2
A person is not regarded as responsible for a child during any period when the child is—
a
continuously absent from the person’s household for a period which exceeds, or is expected to exceed, 6 months;
b
a prisoner;
c
looked after by a local authority; or
d
placed for adoption by an adoption agency in the home of a person proposing to adopt the child.
3
A child is not looked after by a local authority for the purpose of paragraph (2)(c)—
a
during any period which is in the nature of a planned short term break, or is one of a series of such breaks, for the purpose of providing respite for the person with whom the child normally lives; or
b
during any period when the child is placed with, or continues to live with, the child’s parent or a person who has parental responsibility for the child.
4
For the purposes of paragraph (3), a person has parental responsibility if that person is not a foster parent and—
a
in England and Wales, has parental responsibility as defined by section 3 of the Children Act 198914;
b
in Scotland, has any or all of the legal responsibilities or rights described in section 1 or 2 of the Children (Scotland) Act 199515; or
c
in Northern Ireland, has parental responsibility as defined by article 6 of the Children (Northern Ireland) Order 199516.
5
In this regulation—
“adoption agency” has the meaning given (for England and Wales) in section 2 of the Adoption and Children Act 200217, (for Scotland) in section 119 of the Adoption and Children (Scotland) Act 200718, and (for Northern Ireland) in article 3 of the Adoption (Northern Ireland) Order 198719;
“looked after by a local authority” has the meaning given in section 22 of the Children Act 198920, section 17(6) of the Children (Scotland) Act 199521 or article 25 of the Children (Northern Ireland) Order 199522 (with the modification that for the reference to a local authority there is substituted a reference to an authority within the meaning of article 2 of that Order);
“placed for adoption” means placed for adoption in accordance with—
Meaning of qualifying child5
1
A child is a qualifying child for the purposes of the Act until the last day of the week in which falls the 1st September following the child’s eleventh birthday.
2
A disabled child is a qualifying child for the purposes of the Act until the last day of the week in which falls the 1st September following the child’s sixteenth birthday.
3
If at any time any provisions of the Act are in force only in relation to children who have not reached a day earlier than the day referred to in paragraph (1) (“the relevant day”), paragraph (1) has effect for the purposes of the Act as if the reference in that paragraph to the relevant day were a reference to that earlier day.
4
If at any time any provisions of the Act are in force only in relation to disabled children who have not reached a day earlier than the day referred to in paragraph (2) (“the relevant day”), paragraph (2) has effect for the purposes of the Act as if the reference in that paragraph to the relevant day were a reference to that earlier day.
5
For the purposes of paragraphs (2) and (4), “disabled child” means—
a
a child in respect of whom any of the following is being paid—
i
disability living allowance;
ii
personal independence payment;
iii
armed forces independence payment;
iv
an allowance or payment made under the law of another EEA state which is substantially similar in character to an allowance or payment within paragraph (i), (ii) or (iii); or
b
a child who is certified as severely sight impaired or blind by a consultant ophthalmologist.
Temporary absence from the United Kingdom6
1
A person’s temporary absence from the United Kingdom is disregarded in determining whether the person meets the condition of eligibility in section 8 (the person must be in the UK) if—
a
the person is an eligible person, within the meaning of section 3, immediately before the beginning of the period of temporary absence; and
b
either—
i
the absence is not expected to exceed, and does not exceed, 8 weeks; or
ii
paragraph (2), (3) or (4) applies.
2
This paragraph applies where the absence does not exceed 6 months and is solely in connection with—
a
the person undergoing treatment for an illness or physical or mental impairment by, or under the supervision of, a qualified practitioner; or
b
the person accompanying the person’s partner or a child for whom the person is responsible for treatment as mentioned in sub-paragraph (a).
3
This paragraph applies where the absence does not exceed 6 months and is solely in connection with the death of—
a
the person’s partner or a child for whom the person was responsible;
b
a close relative of the person, or of the person’s partner; or
c
a close relative of a child for whom the person or the person’s partner is responsible.
4
This paragraph applies where the absence is not expected to exceed, and does not exceed, 6 months and the person is—
a
a mariner; or
b
a continental shelf worker who is in a designated area or a prescribed area.
5
Regulation 4 applies for the purposes of this regulation.
6
In this regulation—
“close relative” means—
- a
a parent, parent-in-law, son, son-in-law, daughter, daughter-in-law, step-parent, step-son, step-daughter, brother or sister; and
- b
if any of the above has a partner, that partner;
- a
“continental shelf worker” means a person who is employed in a designated area or a prescribed area in connection with any activity mentioned in section 11(2) of the Petroleum Act 199827;
“designated area” means any area which may from time to time be designated by Order in Council under the Continental Shelf Act 196428 as an area within which the rights of the United Kingdom with respect to the seabed and subsoil and their natural resources may be exercised;
“mariner” means a person who is employed either as a master or member of the crew of any ship or vessel, or in any other capacity on board any ship or vessel where—
- a
the employment is entered into in the United Kingdom with a view to its performance (in whole or in part) while the ship or vessel is on its voyage; and
- b
the employment in that other capacity is for the purposes of that ship or vessel or its crew or any passengers or cargo or mails carried by the ship or vessel;
- a
“prescribed area” means any area over which Norway or any member State (other than the United Kingdom) exercises sovereign rights for the purpose of exploring the seabed and subsoil and exploiting their natural resources, being an area outside the territorial seas of Norway or such member State, or any other area which is from time to time specified under section 10(8) of the Petroleum Act 1998;
“qualified practitioner” means a person qualified to provide medical treatment, physiotherapy or a form of treatment which is similar to, or related to, either of those forms of treatment.
Persons treated as being, or not being, in the United Kingdom
7
1
The following persons are treated for the purposes of the Act as being in the United Kingdom—
a
a person who is ordinarily resident in the United Kingdom;
b
a Crown servant or member of Her Majesty’s forces posted overseas;
c
the partner of the person mentioned in sub-paragraph (b) when the partner is accompanying the person on that posting;
d
a resident of another EEA state who is in paid work in the United Kingdom.
2
A person mentioned in paragraph (1)(b) is posted overseas if the person is performing overseas the duties of a Crown servant or member of Her Majesty’s forces and was, immediately before their posting or the first of consecutive postings, ordinarily resident in the United Kingdom.
3
The following persons are treated for the purposes of the Act as not being in the United Kingdom—
a
a person in the United Kingdom who—
i
is not ordinarily resident in the United Kingdom; and
ii
is not in the United Kingdom in one or more of the circumstances specified in regulation 8;
b
a person in the United Kingdom who—
i
is resident in the United Kingdom but is taxed, by virtue of double taxation arrangements, as if they were not so resident; and
ii
is not a resident of another EEA state who is in paid work in the United Kingdom;
c
a person who is subject to immigration control.
4
In this regulation—
“Crown servant” means a person—
- i
holding an office or employment under the Crown;
- ii
whose duties of employment are of a public nature; and
- iii
whose salary is paid out of public funds of the United Kingdom;
- i
“double taxation arrangements” means arrangements that have effect under section 2(1) of the Taxation (International and Other Provisions) Act 201029 (giving effect to arrangements made in relation to other territories);
“Her Majesty’s forces” has the meaning in the Armed Forces Act 200630;
“person subject to immigration control” has the meaning in section 115(9) of the Immigration and Asylum Act 199931.
8
The circumstances specified in this regulation are that a person is in the United Kingdom as—
a
a refugee within the definition in Article 1 of the Convention relating to the Status of Refugees done at Geneva on 28th July 1951, as extended by Article 1(2) of the Protocol relating to the Status of Refugees done at New York on 31st January 1967;
b
a person who has been granted, or who is deemed to have been granted, leave outside the rules (the “Immigration Rules”) made under section 3(2) of the Immigration Act 197132 where that leave is—
i
discretionary leave to enter or remain in the United Kingdom;
ii
leave to remain under the Destitution Domestic Violence concession33; or
iii
leave deemed to have been granted by virtue of regulation 3 of the Displaced Persons (Temporary Protection) Regulations 200534;
c
a person who has humanitarian protection granted under the Immigration Rules; or
d
a person who has been deported, expelled or otherwise removed by compulsion of law from another country to the United Kingdom, but is not a person subject to immigration control as defined by section 115(9) of the Immigration and Asylum Act 1999.
The requirement to be in qualifying paid work9
1
For the purposes of the Act, a person is in qualifying paid work if—
a
the person is in paid work as an employed person whose expected income from the work in the period specified in paragraph (4) is greater than or equal to the relevant threshold; or
b
the person is in paid work as a self-employed person and either—
i
the person’s expected income from the work in the period specified in paragraph (4) is greater than or equal to the relevant threshold; or
ii
the person’s expected income from the work in the period specified in paragraph (5) is greater than or equal to four times the relevant threshold.
2
For the purposes of this regulation—
a
a person is to be treated as in paid work as an employed person if the person—
i
has accepted an offer of work on or before the date of the declaration of eligibility; and
ii
expects the work to start within 14 days of that day; and
b
a person is to be treated as in paid work as an employed person if the person—
i
is absent from work on unpaid leave on the date of the declaration of eligibility; and
ii
expects to return to work within 14 days of that day.
3
A person’s “expected income” is the income which the person has a reasonable expectation of receiving, calculated in accordance with regulation 10.
4
The period specified in this paragraph is—
a
the period of 3 months beginning with the date of the declaration of eligibility; or
b
if paragraph (2)(a) or (2)(b) applies, the period of 3 months beginning with the day on which the work is expected to start or the person is expected to return to work.
5
The period specified in this paragraph is, in relation to a declaration of eligibility, the tax year in which the date of the declaration falls.
6
In this regulation, “the relevant threshold” is the product of the calculation—
where—
M is the minimum weekly income; and
W is the number of weeks in the period specified in paragraph (4).
Calculation of expected income10
1
An employed person’s expected income comprises the amount of earnings the person expects to receive from—
a
any employment under a contract of service;
b
any office, including an elected office.
2
In paragraph (1), “earnings” has the meaning given by section 62 of ITEPA 200335 (general definition of earnings).
3
A self-employed person’s expected income comprises—
a
the amount of receipts the person expects to derive from a trade, profession or vocation less the amount of expenses the person expects to incur wholly and exclusively for the purposes of the trade, profession or vocation; or
b
if the person carries on a trade, profession or vocation in a business partnership, the share expected to be allocated to the person of the partnership’s receipts less the share expected to be allocated to that person of the partnership’s expenses incurred wholly and exclusively for the purposes of the trade, profession or vocation.
4
In calculating a self-employed person’s income, receipts and expenses of a capital nature are to be disregarded.
5
A person’s expected income may include income from a person’s employment and self-employment taken together.
Self-employed persons: start-up periods11
1
A self-employed person does not have to meet the condition in regulation 9(1)(b)—
a
in the first entitlement period which falls wholly or partly within a start-up period; and
b
in the subsequent 3 entitlement periods.
2
A “start-up period” is the period of 12 months following the commencement by the self-employed person of any trade, profession or vocation.
3
A self-employed person cannot rely on a second or subsequent start-up period (in relation to the commencement by that person of a new trade, profession or vocation) unless 4 calendar years have passed since the end of the previous start-up period.
4
In paragraph (3) “the previous start-up period” is the period during which the person did not have to meet the condition in regulation 9(1)(b).
Qualifying paid work: time off in connection with sickness or parenting12
1
This regulation applies for any period during which a person—
a
b
c
is paid statutory maternity pay under Part 12 of the Social Security Contributions and Benefits Act 1992 or Part 12 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992;
d
e
f
g
h
i
j
k
l
is absent from work during a period of shared parental leave under section 75E or 75G of the Employment Rights Act 199656; or
2
Subject to paragraphs (3), (4) and (5), that person is regarded for the purposes of the Act—
a
as in paid work during the period in paragraph (1); and
b
as having, for each week of that period, expected income from that work equal to the minimum weekly income.
3
Paragraph (2) does not apply unless, immediately before the start of the period in any sub-paragraph of paragraph (1), either—
a
the person was in qualifying paid work; or
b
this regulation applied to the person by virtue of a different sub-paragraph of paragraph (1).
4
For the purposes of the entitlement of a person, or of a person’s partner, to receive top-up payments in respect of a child whose birth or adoption caused the period in paragraph (1)(b) to (m) to run, paragraph (2) applies only for the final 14 days before the person returns to work.
5
Paragraph (2) applies to a person by virtue of paragraph (1)(h) only for such period as that person would have been paid additional statutory paternity pay had the conditions of entitlement in Part 2 or 3 of the Additional Statutory Paternity Pay (General) Regulations 201059 or Part 2 or 3 of the Additional Statutory Paternity Pay (General) Regulations (Northern Ireland) 201060 been satisfied.
6
This regulation applies to a self-employed person during any period for which paragraph (1) would have applied in that person’s case but for the fact that the work performed in the week immediately before the period began, although done for payment or in expectation of payment, was not performed under a contract of service.
7
This regulation applies to a resident of another EEA state who is in paid work in the United Kingdom, or such a person’s partner, who under the law of that state—
a
receives payments which are substantially similar in character to the payments in paragraph (1)(a) to (c), (f) or (i); or
b
is absent from work in circumstances which are substantially similar in character to a period of absence described in paragraph (1)(d), (e), (g), (h) or (j) to (m).
Qualifying paid work: caring, incapacity for work or limited capability for work13
1
This regulation applies for any period during which—
a
a person (“P”) has a partner who is in qualifying paid work; and
b
P is paid or entitled to any of the following—
i
ii
severe disablement allowance under section 68 of the Social Security Contributions and Benefits Act 1992 or section 68 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 (as they have effect by virtue of article 4 of the Welfare Reform and Pensions Act 1999 (Commencement No. 9, and Transitional and Savings Provisions) Order 200063 and article 4 of the Welfare Reform and Pensions (1999 Order) (Commencement No. 6 and Transitional and Savings Provisions) Order (Northern Ireland) 200064);
iii
iv
v
2
For the purposes of the Act, P is regarded—
a
as in paid work during that period; and
b
as having, for each week of that period, expected income from that work equal to the minimum weekly income.
3
P’s partner is not in qualifying paid work for the purposes of paragraph (1)(a) during any period when that partner is paid a benefit or an allowance, or is entitled to a credit, described in paragraph (1)(b).
4
This regulation applies to a self-employed person, or that person’s partner, during any period for which paragraph (1) would have applied in that person’s (or partner’s) case but for the fact that the work performed in the week immediately before the period began, although done for payment or in expectation of payment, was not performed under a contract of service.
5
This regulation applies to a resident of another EEA state who is in paid work in the United Kingdom, or such a person’s partner, who under the law of that state is entitled to a benefit, allowance or credit which is substantially similar in character to a benefit, allowance or credit described in paragraph (1)(b).
Qualifying childcare: work requirement14
1
For the purposes of this regulation and section 2 (qualifying childcare) “work” means paid work.
2
The condition in section 2(2)(b) is treated as being met in relation to a person to whom any of the cases in regulation 12(1)(a) to (m) or 13(1)(b) applies.
3
The condition in section 2(2)(b) is treated as being met by a person who is on sick leave or paid annual leave.
4
In this regulation—
“annual leave” means, in relation to a self-employed person, reasonable amounts of time off from work for the same purposes as the purposes for which annual leave is taken;
what are “reasonable amounts” is to be assessed having regard to the annual leave or sick leave to which an employee might reasonably expect to be entitled if doing similar work;
“sick leave” means, in relation to a self-employed person, reasonable amounts of time off from work due to sickness.
Income not to exceed a certain level15
1
A person is treated as meeting the condition of eligibility in section 10 (the income of the person and his or her partner must not exceed limit) if the person does not expect to pay income tax at the additional rate or the dividend additional rate for the relevant tax year.
2
A resident of another EEA state who is in paid work in the United Kingdom is treated as meeting the condition of eligibility in section 10 if that person would not expect to pay income tax at the additional rate or the dividend additional rate on the hypothetical net income of that person for the relevant tax year.
3
A person is treated as not meeting the condition of eligibility in section 10 if—
a
the person has made, or expects to make, a claim under section 809B of the Income Tax Act 200774 (claim for remittance basis to apply) for the relevant tax year; or
b
the person expects section 809E of that Act (application of remittance basis in certain cases without claim) to apply to the person for the relevant tax year.
4
In this regulation—
“hypothetical net income” has the meaning given in section 55C(3) of the Income Tax Act 200775 (election to reduce personal allowance);
“the relevant tax year” has the meaning given in section 10(5).
Application of section 11 to EEA residents16
1
Section 11 (neither the person nor his or her partner may be claiming universal credit) applies with the modifications in paragraph (2) to a resident of another EEA state who is in paid work in the United Kingdom if, at the date of the declaration, that person or that person’s partner either—
a
is, under the law of that state, being paid in respect of a relevant assessment period a credit (an “equivalent credit”) which is substantially similar in character to universal credit; or
b
has made a claim that would result in an equivalent credit becoming payable to that person or that person’s partner in respect of a relevant assessment period.
2
The modifications in this paragraph are—
a
a reference to universal credit includes a reference to an equivalent credit; and
b
a reference to “the relevant legislation” includes a reference to the provisions governing the equivalent credit.
Application of sections 12 and 13 to EEA residents17
1
Sections 12 and 13 (neither the person nor his or her partner may be in a relevant childcare scheme or receiving other childcare support) apply to a resident of another EEA state who is in paid work in the United Kingdom, and to such a person’s partner, with the modifications in paragraph (2).
2
The modifications in this paragraph are—
a
in section 12—
i
a reference to a “relevant childcare scheme” includes a scheme which, under the law of another EEA state, provides support of a substantially similar character to a scheme under section 270A (limited exemption for qualifying childcare vouchers) or 318 (childcare: exemption for employer-provided care) of ITEPA 200376; and
ii
“eligible employee” means a person who is eligible for such a scheme;
b
in section 13, a reference to “national authority” includes an authority of another EEA state.
Disqualifying tax credit and universal credit claimants from obtaining top-up payments: change of circumstances18
1
The following are to be regarded as changes of circumstances in relation to a person for the purposes of sections 32 and 33 (power to disqualify tax credit or universal credit claimants from obtaining top-up payments)—
a
a person no longer meets the conditions of eligibility in sections 7 to 9, or a person’s partner no longer meets the condition in section 9;
b
the composition of a person’s household changes, including where—
i
a person’s partner joins the person’s household or the person joins the partner’s household;
ii
a person or a person’s partner takes responsibility for another child or qualifying young person;
iii
a person’s partner or a child leaves the household; or
iv
a person’s partner or child dies;
c
a person or the person’s partner is absent from the household for at least one month;
d
a person’s child or the person’s partner’s child is awarded, or ceases to be entitled to, disability living allowance, personal independence payment or armed forces independence payment;
e
the principal employment of a person or a person’s partner changes;
f
the employment status of a person or a person’s partner changes;
g
a person becomes liable to pay HMRC an amount under section 35(2), 36(2), 37(2) or 38(3) (recovery of top-up payment where award of tax credit or universal credit made on review, revision or appeal); or
h
any other change entitles a person or a person’s partner to make a claim that results in either—
i
a first award of a tax credit; or
ii
a first award of universal credit.
2
For the purposes of paragraph (1)(b)(ii)—
a
in a case within section 32—
i
a person takes responsibility for a child or qualifying young person where the person takes such responsibility in accordance with the rules in regulation 3 of the Child Tax Credit Regulations 200277; and
ii
“qualifying young person” has the meaning given in regulations 2 and 5(3) and (4) of those Regulations;
b
in a case within section 33—
i
a person takes responsibility for a child or qualifying young person where the person takes such responsibility as determined by regulations 4 and 4A of the Universal Credit Regulations 201378; and
ii
“qualifying young person” has the meaning given in regulation 5 of those Regulations;
c
“child” means a person under the age of 16.
3
In paragraph (1)(b)(iii) and (iv) and (1)(d) “child” means a qualifying child for the purposes of the Act.
4
In paragraph (1)(e), a person’s “principal employment” is the employment in which the greater part of the person’s working time is spent.
(This note is not part of the Regulations)