The Childcare Payments (Eligibility) Regulations 2015

Made: 4th March 2015

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 2014 .

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 commencement

1

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.

Interpretation

2

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;

• ...

• “armed forces independence payment” means armed forces independence payment under the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 ;

• “coronavirus” means severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2);

• “coronavirus support scheme” means—any scheme in relation to which HMRC have functions by virtue of a direction made under section 76 of the Coronavirus Act 2020 (HMRC functions);the scheme known as the Small Business Grant Fund established in response to coronavirus;any scheme established in the tax year 2020-21 in response to coronavirus to support the fishing industry;the scheme known as the Retail, Hospitality and Leisure Grant Fund established in response to coronavirus;the scheme known as the Newly Self-Employed Hardship Fund established by the Scottish Ministers in the tax year 2020-2021 in response to coronavirus; andany other support scheme established in the tax year 2020-21 or 2021-2022 in response to coronavirus; and

• “disability living allowance” means either—disability living allowance under sections 71 to 76 of the Social Security Contributions and Benefits Act 1992 or sections 71 to 76 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992; or disability assistance given in accordance with regulations made under section 31 of the Social Security (Scotland) Act 2018;

• “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; or an engagement in relation to which any of Chapters 7 to 10 of Part 2 of ITEPA 2003 applies (which relate to agency workers, workers under arrangements made by intermediaries and workers providing services through managed service companies);

• “minimum weekly income” means the amount a person would be paid for 16 hours of work a week at the hourly rate set out in regulations 4, 4A and 4B of the National Minimum Wage Regulations 2015;

• “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 2012 or Part 5 of the Welfare Reform (Northern Ireland) Order 2015;

• “prescribed state” means any EEA state or Switzerland;

• “prisoner” means—a person who is detained in custody pending trial or sentence upon conviction or under a sentence imposed by a court; ora person who is on temporary release in accordance with the provisions of the Prison Act 1952 , the Prisons (Scotland) Act 1989 or the Prison Act (Northern Ireland) 1953 ,other than a person who is detained in hospital under the provisions of the Mental Health Act 1983 , in Scotland under the provisions of the Mental Health (Care and Treatment) (Scotland) Act 2003 or the Criminal Procedure (Scotland) Act 1995 or, in Northern Ireland, under articles 12 to 17 of the Mental Health (Northern Ireland) Order 1986 ;

• “Scottish Ministers” has the meaning given by section 44(2) of the Scotland Act 1998;

• “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: partners

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• (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 child

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• (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 1989 ;

• (b) in Scotland, has any or all of the legal responsibilities or rights described in section 1 or 2 of the Children (Scotland) Act 1995 ; or

• (c) in Northern Ireland, has parental responsibility as defined by article 6 of the Children (Northern Ireland) Order 1995 .

• (5) In this regulation—

• “adoption agency” has the meaning given (for England and Wales) in section 2 of the Adoption and Children Act 2002 , (for Scotland) in section 119 of the Adoption and Children (Scotland) Act 2007 , and (for Northern Ireland) in article 3 of the Adoption (Northern Ireland) Order 1987 ;

• “looked after by a local authority” has the meaning given in section 22 of the Children Act 1989 , section 17(6) of the Children (Scotland) Act 1995 or article 25 of the Children (Northern Ireland) Order 1995 (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—the Adoption Agencies Regulations 2005 ;the Adoption Agencies (Wales) Regulations 2005 ;the Adoption Agencies (Scotland) Regulations 2009 ; orthe Adoption Agencies Regulations (Northern Ireland) 1989 .

Meaning of qualifying child

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• (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 a prescribed 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 Kingdom

6

• (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 parent, parent-in-law, son, son-in-law, daughter, daughter-in-law, step-parent, step-son, step-daughter, brother or sister; andif any of the above has a partner, that partner;

• “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 1998 ;

• “designated area” means any area which may from time to time be designated by Order in Council under the Continental Shelf Act 1964 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—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; andthe 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;

• “prescribed area” means any area over which Norway or any member State of the EEA ... 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 a prescribed state who is not a person subject to immigration control and 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 a prescribed 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—holding an office or employment under the Crown;whose duties of employment are of a public nature; andwhose salary is paid out of public funds of the United Kingdom;

• “double taxation arrangements” means arrangements that have effect under section 2(1) of the Taxation (International and Other Provisions) Act 2010 (giving effect to arrangements made in relation to other territories);

• “Her Majesty's forces” has the meaning in the Armed Forces Act 2006 ;

• “person subject to immigration control” has the meaning in section 115(9) of the Immigration and Asylum Act 1999 .

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• (1) 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 1971 where that leave is—

• (i) discretionary leave to enter or remain in the United Kingdom;

• (ii) leave to remain under the Destitution Domestic Violence concession ; or

• (iii) leave deemed to have been granted by virtue of regulation 3 of the Displaced Persons (Temporary Protection) Regulations 2005 ;

• (c) a person who has humanitarian protection granted under the Immigration Rules; ...

• (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 ; or

• (e) (e) a person who has been granted section 67 leave.

• (2) In this regulation “section 67 leave” means leave to remain in the United Kingdom granted by the Secretary of State to a person who has been relocated to the United Kingdom pursuant to arrangements made by the Secretary of State under section 67 of the Immigration Act 2016.

The requirement to be in qualifying paid work

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• (1) For the purposes of the Act, a person is in qualifying paid work if the person or any partner holds a National Insurance Number (“NINo”) and—

• (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 ... the threshold specified in paragraph (5A);

• (c) the person is in paid work as an employed person and as a self-employed person and 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