PART 4Income and capital
SECTION 2Income and capital
Treatment of child care charges21
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;
F2ba
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 (General) Regulations 1987 M2; or
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 benefitF4, 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 10 (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
d
F15in 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 M6;
F15by a person who is excepted from registration under Part 2 of the Children and Families (Wales) Measure 2010 because the child care that person provides is in a school or establishment referred to in article 11, 12 or 14 of the Child Minding and Day Care Exceptions (Wales) Order 2010;
F16e
by—
i
persons registered under section 59(1) of the Public Services Reform (Scotland) Act 2010; or
ii
local authorities registered under section 83(1) of that Act,
where the care provided is child minding or day care 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; F10or
F10g
by a person who is registered under Chapter 2 or 3 of Part 3 of the Childcare Act 2006; or
h
by any of the schools mentioned in section 34(2) of the Childcare Act 2006 in circumstances where the requirement to register under Chapter 2 of Part 3 of that Act does not apply by virtue of section 34(2) of that Act; or
i
by any of the schools mentioned in section 53(2) of the Childcare Act 2006 in circumstances where the requirement to register under Chapter 3 of Part 3 of that Act does not apply by virtue of section 53(2) of that Act; or
j
by any of the establishments mentioned in section 18(5) of the Childcare Act 2006 in circumstances where the care is not included in the meaning of “childcare” for the purposes of Part 1 and Part 3 of that Act by virtue of that subsection; or
k
by a foster parent F11or kinship carer under the Fostering Services Regulations 2002, the Fostering Services (Wales) Regulations 2003 or the F12Looked After Children (Scotland) Regulations 2009 in relation to a child other than one whom the foster parent is fostering F13or kinship carer is looking after; or
l
by a domiciliary care worker under the Domiciliary Care Agencies Regulations 2002 or the Domiciliary Care Agencies (Wales) Regulations 2004; or
m
by a person who is not a relative of the child wholly or mainly in the child’s home.
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 1 of the Council Tax Benefit Regulations 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 M7;
F5ba
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 (within the meaning of regulation 2(1)) 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;
F6ca
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 Schedule 4 to 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 F9paid 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;
F7vii
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 12(5) (applicable amounts);
f
F1sub-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 M8 or by Scottish Ministers under section 46 of the National Health Service (Scotland) Act 1978 M9 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 M10.
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.
F812A
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 M11 (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 1999 M12; 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 she 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, paternity leave or adoption leave began she was in remunerative work;
b
the claimant is incurring relevant child care charges within the meaning of paragraph (5); and
c
she is entitled to statutory maternity pay under section 164 of the Act, F17ordinary statutory paternity pay by virtue of section 171ZA or 171ZB of the Act M13, additional statutory paternity pay by virtue of section 171ZEA or 171ZEB of the Act, statutory adoption pay by virtue of section 171ZL of the Act M14 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, F18ordinary or additional 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, F18ordinary or additional 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 (child care element).