The Statutory Paternity Pay and Statutory Adoption Pay (General) Regulations 2002

Made: 13th November 2002

Laid before Parliament: 15th November 2002

Coming into force: 8th December 2002

The Secretary of State, in exercise of the powers conferred on her by sections 171ZA(2)(a), 171ZB(2)(a), 171ZC(3)(a), (c), (d), (f) and (g), 171ZD(2) and (3), 171ZE(2)(a), (b)(i), (3), (7) and (8), 171ZG(3), 171ZJ(1), (3), (4), (7) and (8), 171ZL(8)(b) to (d), (f) and (g), 171ZM(2) and (3), 171ZN(2), (5) and (6), 171ZP(6), 171ZS(1), (3), (4), (7) and (8), and 175(4) of the Social Security Contributions and Benefits Act 1992 and section 5(1)(g), (i) and (p) of the Social Security Administration Act 1992 and with the concurrence of the Commissioners of Inland Revenue in so far as such concurrence is required, by this instrument, which contains only provision made by virtue of sections 2, 4 and 53 of and paragraphs 8 and 11 of Schedule 7 to the Employment Act 2002 and is made before the end of the period of 6 months from the coming into force of those enactments, hereby makes the following Regulations—

PART 1 — Introduction

Citation and commencement

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These Regulations may be cited as the Statutory Paternity Pay and Statutory Adoption Pay (General) Regulations 2002 and shall come into force on 8th December 2002.

Interpretation

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• (1) In these Regulations—

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

• “adopter”, in relation to a child, means a person who has been matched with the child for adoption;

• “adoption agency” has the meaning given, in relation to England and Wales, by section 1(4) of the Adoption Act 1976 and in relation to Scotland, by section 119(1) of the Adoption and Children (Scotland) Act 2007;

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

• “the Contributions Regulations” means the Social Security (Contributions) Regulations 2001 ;

• “expected week”, in relation to the birth of a child, means the week, beginning with midnight between Saturday and Sunday, in which it is expected that the child will be born;

• “returned after being placed for adoption” means—returned under sections 31 to 35 of the Adoption and Children Act 2002;in Scotland, returned to the adoption agency, adoption society or nominated person in accordance with section 25(6) of the Adoption and Children (Scotland) Act 2007; orwhere the child is placed in accordance with section 22C of the Children Act 1989, returned to the adoption agency following a termination of the placement;

• “statutory paternity pay (adoption)” means statutory paternity pay payable in accordance with the provisions of Part 12ZA of the Act where the conditions specified in section 171ZB(2) of the Act are satisfied;

• “statutory paternity pay (birth)” means statutory paternity pay payable in accordance with the provisions of Part 12ZA of the Act where the conditions specified in section 171ZA(2) of the Act are satisfied.

• (2) For the purposes of these Regulations—

• (a) a person is matched with a child for adoption when an adoption agency decides that that person would be a suitable adoptive parent for the child;

• (b) in a case where paragraph (a) applies, a person is notified as having been matched with a child on the date that person receives notification of the agency’s decision, under regulation 33(3)(a) of the Adoption Agencies Regulations 2005, regulation 28(3) of the Adoption Agencies (Wales) Regulations 2005 or regulation 8(5) of the Adoption Agencies (Scotland) Regulations 2009;

• (c) a person is also matched with a child for adoption when a decision is has been made in accordance with regulation 22A of the Care Planning, Placement and Case Review (England) Regulations 2010 and an adoption agency has identified that person with whom the child is to be placed in accordance with regulation 12B of the Adoption Agencies Regulations 2005.

• (d) in a case where paragraph (c) applies, a person is notified as having been matched with a child on the date on which that person receives notification in accordance with regulation 12B(2)(a) of the Adoption Agencies Regulations 2005.

• (3) A reference (however expressed) in these Regulations to “placed for adoption” means—

• (a) placed for adoption under the Adoption and Children Act 2002 or the Adoption and Children (Scotland) Act 2007; or

• (b) placed in accordance with section 22C of the Children Act 1989 with a local authority foster parent who is also a prospective adopter.

• (4) The reference to “prospective adopter” in paragraph (3) means a person who has been approved as suitable to adopt a child and has been notified of that decision in accordance with regulation 30B(4) of the Adoption Agencies Regulations 2005.

Application

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• (1) Subject to the provisions of Part 12ZA of the Act (statutory paternity pay) and of these Regulations, there is entitlement to—

• (a) statutory paternity pay (birth) in respect of children—

• (i) born on or after 6th April 2003; or

• (ii) whose expected week of birth begins on or after that date;

• (b) statutory paternity pay (adoption) in respect of children—

• (i) matched with a person who is notified of having been matched on or after 6th April 2003; or

• (ii) placed for adoption on or after that date.

• (2) Subject to the provisions of Part 12ZB of the Act (statutory adoption pay) and of these Regulations, there is entitlement to statutory adoption pay in respect of children—

• (a) matched with a person who is notified of having been matched on or after 6th April 2003; or

• (b) placed for adoption on or after that date.

PART 2 — Statutory paternity pay (birth)

Conditions of entitlement to statutory paternity pay (birth): relationship with newborn child and child’s mother

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The conditions prescribed under section 171ZA(2)(a) of the Act are those prescribed in regulation 4(2)(b) and (c) of the Paternity and Adoption Leave Regulations 2002 .

Modification of entitlement conditions: early birth

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Where a person does not meet the conditions specified in section 171ZA(2)(b) to (d) of the Act because the child’s birth occurred earlier than the 14th week before the expected week of the birth, it shall have effect as if, for the conditions there set out, there were substituted the conditions that—

• (a) the person would, but for the date on which the birth occurred, have been in employed earner’s employment with an employer for a continuous period of at least 26 weeks ending with the week immediately preceding the 14th week before the expected week of the child’s birth;

• (b) his normal weekly earnings for the period of 8 weeks ending with the week immediately preceding the week in which the child is born are not less than the lower earnings limit in force under section 5(1)(a) of the Act immediately before the commencement of the week in which the child is born.

Period of payment of statutory paternity pay (birth)

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• (1) Within the qualifying period set out in regulation 6A, a person entitled to statutory paternity pay (birth) may choose a period of payment of statutory paternity pay to begin on—

• (a) the date on which the child is born or, where the person is at work on that day, the following day;

• (b) the date falling such number of days after the date on which the child is born as the person may specify;

• (c) a predetermined date, specified by the person, which is later than the first day of the expected week of the child’s birth.

• (2) A person may choose for statutory paternity pay (birth) to be paid in respect of—

• (a) a single period of either one week or two weeks, or

• (b) two non-consecutive periods of a week each.

Additional notice requirements for statutory paternity pay (birth)

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• (1) Where a person has given notice in accordance with regulation 6B(5)(a) or (b), the person must give further notice to the person liable to pay statutory paternity pay, as soon as is reasonably practicable after the child’s birth, of the date the child was born.

• (2) In a case where—

• (a) a person has given notice in accordance with regulation 6B(5)(c), and

• (b) the date of the child’s birth is later than the date specified in that notice as the date on which a period of payment is to begin,

the person must vary the date on which the period of payment is to begin by giving notice to the person liable to pay statutory paternity pay (birth), as soon as is reasonably practicable, that the period in respect of which statutory paternity pay is to be paid will begin on a date different from that originally chosen.

• (3) That date may be any date chosen in accordance with paragraph (1) of regulation 6.

• (4) Where a notice is given under regulation 6B(7) or paragraph (2) above which varies the dates of a period of payment, a declaration under regulation 6B(3)(b) in relation to that period must be given at the same time as that notice.

• (5) Paragraph (2) does not apply in circumstances where regulation 16A(5) applies.

Qualifying period for statutory paternity pay (birth)

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Evidence of entitlement to statutory paternity pay (birth)

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Entitlement to statutory paternity pay (birth) where there is more than one employer

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Statutory paternity pay (birth) shall be payable to a person in respect of a statutory pay week during any part of which he works only for an employer—

• (a) who is not liable to pay him statutory paternity pay (birth); and

• (b) for whom he has worked in the week immediately preceding the 14th week before the expected week of the child’s birth.

PART 3 — Statutory paternity pay (adoption)

Conditions of entitlement to statutory paternity pay (adoption): relationship with child and with person with whom the child is placed for adoption

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• (1) The conditions prescribed under section 171ZB(2)(a) of the Act are that a person—

• (a) is married to , the civil partner or the partner of a child’s adopter (or in a case where there are two adopters, married to , the civil partner or the partner of the other adopter), and

• (b) has, or expects to have, the main responsibility (apart from the responsibility of the child’s adopter, or in a case where there two adopters, together with the other adopter) for the upbringing of the child.

• (2) For the purposes of paragraph (1), “partner” means a person (whether of a different sex or the same sex) who lives with the adopter and the child in an enduring family relationship but is not a relative of the adopter of a kind specified in paragraph (2A).

• (2A) The relatives of the adopter referred to in paragraph (2) are the adopter’s parent, grandparent, sister, brother, aunt or uncle.

• (3) References to relationships in paragraph (2A)—

• (a) are to relationships of the full blood or half blood, or, in the case of an adopted person, such of those relationships as would exist but for the adoption, and

• (b) include the relationship of a child with his adoptive, or former adoptive parents but do not include any other adoptive relationships.

Period of payment of statutory paternity pay (adoption)

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• (1) Within the qualifying period set out in regulation 12A, a person entitled to statutory paternity pay (adoption) may choose a period of payment of statutory paternity pay to begin on—

• (a) the date on which the child is placed with the adopter or, where the person is at work on that day, the following day;

• (b) the date falling such number of days after the date on which the child is placed with the adopter as the person may specify;

• (c) a predetermined date, specified by the person, which is later than the date on which the child is expected to be placed with the adopter.

• (2) A person may choose for statutory paternity pay (adoption) to be paid in respect of—

• (a) a single period of either one week or two weeks, or

• (b) two non-consecutive periods of a week each.

Additional notice requirements for statutory paternity pay (adoption)

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• (1) Where a person has chosen an option in regulation 12(1)(a) or (b) in a notice of a period of payment of statutory paternity pay, the person must give further notice to the person liable to pay statutory paternity pay, as soon as is reasonably practicable, of the date on which the placement occurred.

• (2) In a case where—

• (a) a person has chosen the option in regulation 12(1)(c) in a notice of a period of payment of statutory paternity pay, and

• (b) the child is placed for adoption later than the date specified in that notice,

the person must vary the date on which the period of payment is to begin by giving notice to the person liable to pay statutory paternity pay (adoption), as soon as is reasonably practicable, that the period in respect of which statutory paternity pay is to be paid will begin on a date different from that originally chosen.

• (3) That date may be any date chosen in accordance with paragraph (1) of regulation 12.

• (4) Where a notice is given under regulation 12B(7) or paragraph (2) above which varies the dates of a period of payment, a declaration under regulation 12B(3)(c) in relation to that period must be given at the same time as that notice.

• (5) Paragraph (2) does not apply in circumstances where regulation 16A(5) applies.

Qualifying period for statutory paternity pay (adoption)

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Evidence of entitlement for statutory paternity pay (adoption)

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Entitlement to statutory paternity pay (adoption) where there is more than one employer

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Statutory paternity pay (adoption) shall be payable to a person in respect of a statutory pay week during any part of which he works only for an employer—

• (a) who is not liable to pay him statutory paternity pay (adoption); and

• (b) for whom he has worked in the week in which the adopter is notified of being matched with the child.

PART 4 — Statutory paternity pay: provisions applicable to both statutory paternity pay (birth) and statutory paternity pay (adoption)

Work during a statutory paternity pay period

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• (1) Where a person (P) works for an employer falling within—

• (a) paragraph (a) but not paragraph (b) of regulation 10, or

• (b) paragraph (a) but not paragraph (b) of regulation 16

for any part of a period which is specified by P in a notice under regulation 6B, 7, 12B or 13, P must notify the person liable to pay statutory paternity pay of the fact of that work within seven days of the first day during which P does such work.

• (2) The notification mentioned in paragraph (1) must be in writing, if the person who has been liable to pay statutory paternity pay so requests.

Cases where there is no liability to pay statutory paternity pay

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• (1) There shall be no liability to pay statutory paternity pay in respect of any week—

• (a) during any part of which the person entitled to it is entitled to statutory sick pay under Part 11 of the Act;

• (b) following that in which the person claiming it has died; or

• (c) during any part of which the person entitled to it is detained in legal custody or sentenced to a term of imprisonment, except where that sentence is suspended (but see paragraph (2).

• (2) There is liability to pay statutory paternity pay in respect of any week during any part of which the person who is entitled to that pay is detained in legal custody where that person—

• (a) is released subsequently without charge,

• (b) is subsequently found not guilty of any offence and is released, or

• (c) is convicted of an offence but does not receive a custodial sentence.

Statutory paternity pay and contractual remuneration

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For the purposes of section 171ZG(1) and (2) of the Act, the payments which are to be treated as contractual remuneration are sums payable under a contract of service—

• (a) by way of remuneration;

• (b) for incapacity for work due to sickness or injury;

• (c) by reason of the birth or adoption of a child.

Avoidance of liability for statutory paternity pay

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• (1) A former employer shall be liable to make payments of statutory paternity pay to a former employee in any case where the employee had been employed for a continuous period of at least 8 weeks and his contract of service was brought to an end by the former employer solely, or mainly, for the purpose of avoiding liability for statutory paternity pay.

• (2) In a case falling within paragraph (1)—

• (a) the employee shall be treated as if he had been employed for a continuous period ending with the child’s birth or, as the case may be, the placement of the child for adoption;

• (b) his normal weekly earnings shall be calculated by reference to his normal weekly earnings for the period of 8 weeks ending with the last day in respect of which he was paid under his former contract of service.

PART 5 — Statutory adoption pay

Adoption pay period

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• (1) Subject to paragraph (2), a person entitled to statutory adoption pay may choose the adoption pay period to begin—

• (a) on the date on which the child is placed with him for adoption or, where he is at work on that day, on the following day;

• (b) subject to paragraph (2), on a predetermined date, specified by him, which is no more than 14 days before the date on which the child is expected to be placed with him and no later than that date.

• (2) In a case where statutory adoption pay is payable in respect of a child matched with an adopter who is notified of having been matched before 6th April 2003, the statutory adoption pay period shall begin on a predetermined date which is—

• (a) on or after 6th April 2003, and

• (b) no more than 14 days before the date on which the child is expected to be placed with the adopter.