Made |
20th November 1987 |
Coming into force |
11th April 1988 |
ARRANGEMENT OF REGULATIONS
Part I
GENERAL
1.Citation and commencement
2.Interpretation
[2A.Disapplication of section 1(1A) of the Administration Act]
Part II
Presence in Great Britain and remunerative work
3.Circumstances in which a person is treated as being or as not being in Great Britain
4.Remunerative work
4A.Further provisions to remunerative work
Part III
Membership of a family
6.Persons of a prescribed description
7.Circumstances in which a person is to be treated as responsible or not responsible for another
8.Membership of the same household
9.Circumstance in which a person is to be treated a being no longer a member of the same household
Part IV
Income and Capital
Chapter I: GENERAL
10.Calculation of income and capital of member of claimant's family and of a polygamous marriage
11.Calculation of income and capital of students
12.Rounding of fractions
Chapter II: NORMAL WEEKLY INCOME
13.Calculation of income on a weekly basis
13A.Treatment of child care charges
14.Normal weekly earnings of employed earners
14A.Normal weekly earnings of directors
15.Normal weekly earnings of self-employed earners
16.Normal weekly income other than earnings
17.Periods to be disregarded
18.Calculation of weekly amount of income
Chapter III: EMPLOYED EARNERS
19.Earnings of employed earners
20.Calculation of net earnings of employed earners
20ZA.Calculation of net earnings of directors
20A.Calculations of bonus or commission
Chapter IV: SELF-EMPLOYED EARNERS
21.Earnings of self-employed earners
22.Calculation of net profit of self-employed earners
23.Deduction of tax and contributions for self-employed earners
Chapter V: OTHER INCOME
24.Calculation of income other than earnings
25.Capital treated as income
26.Notional income
27.Modifications in respect of children and young persons
Chapter VI: CAPITAL
28.Capital limit
29.Calculation of capital
30.Disregard of capital of child or young person
31.Income treated as capital
32.Calculation of capital in the United Kingdom
33.Calculation of capital outside the United Kingdom
34.Notional capital
34A.Diminishing notional capital rule
35.Capital jointly held
36.Calculation of tariff income from capital
Chapter VII: STUDENTS
37.Interpretation
38.Calculation of grant income
39.Calculation of covenant income where a contribution is assessed
40. Covenant income where no grant income or no contribution is assessed
41. Relationship with amounts to be disregarded under Schedule 2.
42.Other amounts to be disregarded
[42ZA.Calculation of capital-lump sum access fund payment]
42A.Treatment of student loans
43.Disregard of contributions
[43A.Further disregard of student's income]
44.Disregard of tax refund
45.Disregard of changes occurring during summer vacation
Part V
Calculation of entitlement
46.Determination of appropriate maximum family credit
[46A.treatment of child care charges]
47.Applicable amount
48.Entitlement to family credit where income exceeds the applicable amount
Part VI
Changes of circumstances
49.Death of claimant
[49ZA. Surrendering an award following birth or adoption etc. of child]
49A.Young person leaving full-time education
50.Prevention of duplication of awards of family credit and income support
51.Overlapping awards
51A.Reduced benefit direction
Part VII
Entitlement to family credit and disability working allowance
52.Prescribed circumstances for entitlement to family credit
SCHEDULES
1.Sums to be disregard in the calculation of earnings
2.Sums to be disregarded in the calculation of income other than earnings
3.Capital to be disregard
4.Determination of maximum family credit; adult, child and young person credits
Whereas a draft of this instrument was laid before Parliament in accordance with section 83(3) of the Social Security Act 1986 and approved by resolution of each House of Parliament;
Now, therefore the Secretary of State for Social Services, in exercise of the powers conferred by section 20(1), (5)(c), (6), (10), (11) and (12), section 21(3) and (6)(a), section 22(1) and (5) to (9), section 51(1)(h) and section 84(1) of the Social Security Act 19868 and sections 104(5) and 166(1) to (3A) of the Social Security Act 19759 and of all other powers enabling him in that behalf, by this instrument, which is made before the end of a period of 12 months from the commencement of the enactments under which it is made, makes the following Regulations:
[In the following S.I. wherever the words "training for work" appear substitute the words "work based training for adults" except in the case of reference to the title or principal order or of the 1993 order. As per S.I. 1998/1426 from 3.7.98.]
Part I
GENERAL
Citation and commencement
1. These Regulations may be cited as the Family Credit (General) Regulations 1987, and shall come into fore on 11th April 1988.
Interpretation
2.-(1) In these Regulations unless the context otherwise requires-
"the Act" means the Social Security Act 1986;
[ "appropriate officer" means the Board or, as the case may be, an officer of the Board; 10]
[ "assessment period" means, in the case of an employed earner, a period determined in accordance with 11[ regulation 14 or, as the case may be, 14A] and, in the case of a self-employed earner, a period determined in accordance with regulation 15; 12]
[ "the benefit Acts" means the Contributions and Benefits Act and the Jobseekers Act 1995; 13]
[ "the Board" means the Commissioners of Inland Revenue; 14]
[ "the Children Order" means the Children (Northern Ireland) Order 199515;16]
"claim" means a claim for 17[ working families' tax credit;]
"claimant" means a person claiming [ working families' tax credit;]
"close relative" means a parent, parent-in-law, son, son-in-law, daughter, daughter-in-law, step-parent, step-son, step-daughter, brother, sister, or the spouse of any of the preceding persons or, if that person is one of an unmarried couple, the other member of that couple;
[ "community charge benefit" means community charge benefits under Part VII of the Contributions and Benefits Act as originally enacted 18; 19 ]
"concessionary payment" means a payment made under arrangements made by the Secretary of State with the consent of the Treasury which is charged either to the National Insurance fund or to a Departmental Expenditure Vote to which payments of benefit under the Act, the Social Security Act or the Child Benefit Act 197520 are charged;
[ "the Contributions and Benefits Act" means the Social Security Contributions and Benefits Act 1992; 22 21]
[ "Crown property" means property held by Her Majesty in right of the Crown or by a government department or which is held in trust for Her Majesty for the purposes of a government department except (in the case of an interest held by Her Majesty in right of the Crown) where the interest is under the management of the Crown Estate Commissioners22;]
[ "Crown servant posted overseas" means a person performing the duties of any office or employment under the Crown in right of the United Kingdom who is, or was prior to his posting, ordinarily resident in the United Kingdom 23 ;]
"date of claim" means the date on which the claimant makes, or is treated as making, a claim for [ working families' tax credit; 24]
[ "director" means a director of a company, and for this purposes "company" means a company within the meaning of section 735(1) of the Companies Act 198525 or a body corporate to which, by virtue of section 718 of that Act, any provision of that Act applies; 26]
[ "disability living allowance" means a disability living allowance under section 37ZA of the Social Security Act 27 28 ]
[ "the Disability Working Allowance Regulations" means the Disability Working Allowance (General) Regulations 1991; "disabled person's tax credit" means a disabled person's tax credit under section 129 of the contributions and Benefits Act;29]
"earnings" has the meaning prescribed in regulation 19 or, as the case may be, 21;
[ "earnings top-up" means the allowance paid by the Secretary of State under the Earnings Top-up Scheme;";
"the Earnings Top-up Scheme" means the Earnings Top-up Scheme 199630;31]
[ "the Eileen Trust" means the charitable trust of that name established on 29th March 1993 out of funds provided by the Secretary of State for the benefit of persons eligible for payment in accordance with its provisions 32 ;]
"employed earner" shall be construed in accordance with section 2(1)(a) of the Social Security Act33;
["employment zones" means an area within Great Britain designated by the Employment Zones Regulations 200034 for the purposes of section 60 of the Welfare Reform and Pensions Act 1999 and an "employment zone programme" means a programme established for an employment zone or zones designed to assist claimants for a jobseeker's allowance to obtain sustainable employment;";
"employment zone contractor" means a person who is undertaking the provision of facilities in respect of an employment zone programme on behalf of the Secretary of State for Education and Employment35;]
["extra statutory maternity pay" means a payment or payments made by an employer to an employee during a maternity pay period in order to supplement statutory maternity pay that is paid to that employee for that period 36 ;]
["Intensive Activity Period for 50 plus" means the programme known by that name and provided in pursuance of arrangements made by or on behalf of the Secretary of State under section 2 of the Employment and Training Act 197337, being a programme lasting for up to 52 weeks for any one individual aged 50 years or over on the day that he or she first joined any such programme, and consisting for that individual of any one or more of the following elements, namely assistance in pursuing self-employed earner's employment, education and training, work experience, assistance with job search, motivation and skills training 38 ;]
[ "the Fund" means moneys made available from time to time by the Secretary of State for the benefit of persons eligible for payment in accordance with the provisions of a scheme established by him on 24th April 1992 or, in Scotland, on 10th April 1992;39]
[ "the Independent Living (Extension) Fund" means the Trust of that name established by a deed dated 25th February 1993 and made between the Secretary of State for Social Security of the one part and Robin Glover Wendt and John Fletcher Shepherd of the other part;40]
[ "the Independent Living Fund" means the charitable trust established out of funds provided by the Secretary of State for the purpose of providing financial assistance to those persons incapacitated by or otherwise suffering from very severe disablement; who are in need of such assistance to enable them to live independently;41]
"the Independent Living Funds" means the Independent Living Fund, the Independent Living (Extension) Fund and the Independent Living (1993) Fund;42]
[ "lone parent" means a person who has no partner and who is responsible for, and a member of the same household as, a child or young person;43]
[ "lower rate" where it relates to rates of tax has the same meaning as in the Income and Corporation Taxes Act 198844 by virtue of section 832(1) of that Act;45]
[ "the Macfarlane (Special Payments) Trust" means the trust of that name, established on 29th January 1990 partly out of funds provided by the Secretary of State, for the benefit of certain persons suffering from haemophilia46;]
[ "the Macfarlane Trust" means the charitable trust, established partly out of funds provided by the Secretary of State to the haemophilia Society, for the relief of poverty or distress among those suffering from haemophilia;47]
[ "the Macfarlane (Special Payments) (No. 2) Trust" means the trust of that name, established on 3rd May 1991 partly out of funds provided by the Secretary of State, for the benefit of certain persons suffering from haemophilia and other beneficiaries;48]
["maternity allowance" has the meaning given by section 35 of the Contributions and Benefits Act 36;]
[ "maternity leave" means a period during which a woman is absent from work because she is pregnant or has given birth to a child, and at the end of which she has a right to return to work either under the terms of her contract of employment or under Part III of the Employment Protection (Consolidation) Act 197849;50]
"mobility allowance" means an allowance under section 37A of the Social Security Act51;
"mobility supplement" means any supplement under article 26A of the Naval, Military and Air Forces etc. (Disablement and Death) Service Pensions Order 198352 including such a supplement by virtue of any other scheme or order or under article 25A of the Personal Injuries (Civilians) Scheme 198353;
"net earnings" means such earnings as are calculated in accordance with regulation 20;
"net profit" means such profit as is calculated in accordance with regulation 22;
["New Deal option" means any of the employment programmes specified in regulation 75(1)(a)(ii) of the Jobseeker's Allowance Regulations 1996 54 and the training scheme specified in regulation 75(1)(b)(ii) of those Regulations38;]
"occupational pension" means any pension or other periodical payment under an occupational pension scheme but does not include any discretionary payment out of a fund established for relieving hardship in particular cases;
"partner" means, where a claimant-
(a) is a member of a married or unmarried couple, the other member of that couple,
(b) is married polygamously to two or more members of the same household, any such member;
[ "pay period" has the meaning given in regulation 14(7)(b)55;]
"payment" includes a part of a payment;
[ "pension fund holder" means with respect to a personal pension scheme or retirement annuity contract, the trustees, managers or scheme administrators, as the case may be, of the scheme or contract concerned56;]
[ "personal pension scheme" has the same meaning as in Section 1 of the Pension Schemes Act 1993F and, in the case of a self-employed earner, includes a scheme approved by the Inland Revenue under Chapter IV of the Part XIV of the Income and Corporation Taxes Act 198857;]
"policy of life insurance" means any instrument by which the payment of money is assured on death (except death by accident only) or the happening of any contingency dependent on human life, or any instrument evidencing a contract which is subject to payment of premiums for a term dependent on human life;
[ "qualifying person" means a person in respect of whom payment has been made from the Fund [or the Eileen Trust];58]
[ "retirement annuity contract" means a contract or trust scheme approved under Chapter III of Part XIV of the Income and Corporation Taxes Act 1988;59]
"self-employed earner" shall be construed in accordance with section 2(1)(b) of the Social Security Act:
["self-employment route" means-
(a) that part of the Employment Option of the New Deal which is specified in regulation 75(1)(a)(ii)(aa)(ii) of the Jobseeker's Allowance Regulations 1996; or
(b) assistance in pursuing self-employed earner's employment while participating in-
(i) an employment zone programme; or
(ii) a course of training or instruction funded by or on behalf of the Secretary of State for Education and Employment, the National Assembly for Wales, or the Scottish Enterprise or Highlands or Islands Enterprise, or
(iii) the Intensive Activity Period specified in regulation 75(1)(a)(iv) of the Jobseeker's Allowance Regulations 1996 or the Intensive Activity Period for 50 plus60;]
"Social Security Act" means the Social Security Act 197561
[ "sports award" means an award made by one of the Sports Councils named in section 23(2) of the National Lottery etc. Act 199362 out of sums allocated to it for distribution under that section;63]
["statutory maternity pay" and "maternity pay period" shall be construed in accordance with Part XII of the Contributions and Benefits Act 64 ;]
"student" has the meaning prescribed in regulation 37;
["subsistence allowance" means an allowance which an employment zone contractor has agreed to pay to a person who is participating in an employment zone programme, which is equal to the amount of income-based jobseeker's allowance which that person would have received in a benefit week had it been payable to him, less 50p65;]
["surrogate child" means a child in respect of whom an order has been made under section 30 of the Human Fertilisation and Embryology Act 199064;]
[ "training allowance" means an allowance (whether by way of periodical grants or otherwise) payable-
(a) out of public funds by a Government department or by or on behalf of the Secretary of State[, the Learning and Skills Council for England, or the National Assembly for Wales66], Scottish Enterprise or Highlands and Islands Enterprise;
(b) to a person for his maintenance or in a respect of a member of his family; and
(c) for the period, or part of the period, during which he is following a course of training or instruction provided by, or in pursuance of arrangements made with, that department or approved by that department in relation to him or so provided or approved by or on behalf of the Secretary of State[, the National Assembly for Wales66], Scottish enterprise or Highlands and Islands Enterprise,
but it does not include an allowance paid by an Government department to or in respect of a person by reason of the fact that he is following a course of full-time Education, other than under arrangements made under section 2 of the Employment and Training Act 197367, or is training as a teacher68;]
S.I.2000 No.3134, regn12 modifies the definition of "training allowance" from 28 November 2000 to 27 November 2001, unless revoked earlier, by adding these words at the end.
[nor does it include any top-up payment made to a person ("the participant") pursuant to-
(a) section 2 of the Employment and Training Act 1973 in respect of the participant's participation in the intensive activity period of the New Deal pilots for 25 plus as defined for the purposes of the Social Security (New Deal Pilot) Regulations 2000 in regulation 2(1) of those Regulations ("the intensive activity period"); or
(b) a written arrangement entered into between the Secretary of State and the person who has arranged for the participant's participation in the intensive activity period and which is made in respect of the participant's participation in that period.]
[ "voluntary organisation" means a body, other than a public or local authority, the activities of which are carried on otherwise than for profit;69]
[ "water charges" means-
(a) as respects England and Wales, any water and sewerage charges under Chapter I of part V of the Water Industry act 199170;
(b) as respects Scotland, any water and sewerage charges under Schedule 11 to the Local Government Finance Act 199271;72]
"week" means a period of seven days beginning with midnight between Saturday and Sunday;
"week of claim" means the week which includes the date of claim;
[ "working families' tax credit" means working families' tax credit under section 128 of the Contributions and Benefits Act;73]
"year of assessment" has the same meaning prescribed in section 526(5) of the Income and Corporation taxes Act 197074;
"young person" has the meaning prescribed in regulation 6.
(2) Unless the context otherwise requires, any reference in these Regulations to a numbered regulation, Part or Schedule is a reference to the regulation, part or Schedule bearing that number in these Regulations any reference in a regulation or Schedule to a numbered paragraph is a reference to the paragraph in that regulation or Schedule bearing that number.
[ Disapplication of section 1(1A) of the Administration Act
2A. Section 1(1A) of the Administration Act (requirement to state national insurance number) shall not apply-
(a) to a child or young person in respect of whom [ working families' tax credit75] is claimed;
(b) to any claim for family credit made or treated as made before 9th February 1998;
(c) to a partner in respect of whom a claim for [ working families' tax credit] is made or treated as made before 5th October 1998.76]
[ (d) to a partner of a Crown servant posted overseas who has no national insurance number and is not a UK national 77 .]
Part II
PRESENCE IN GREAT BRITAIN AND REMUNERATIVE WORK
Circumstances in which a person is treated as being or as not being in Great Britain
3.-(1) A person shall be treated as being in Great Britain if, on the date of claim-
(a) he is present and ordinarily resident in Great Britain; and
[ (aa) subject to paragraph (1A), [he is not a person subject to immigration control within the meaning of section 115 of the Immigration and Asylum Act 199978 79, and80]
(b) his partner, if any, is ordinarily resident in the Untied Kingdom; and
(c) his earnings or the earnings of his partner, if any, derive at least in part from remunerative work in the United Kingdom; and
(d) his earnings do not wholly derive from remunerative work outside the United Kingdom nor do the earnings of his partner, if any.
[ (1ZA) A Crown servant posted overseas, or his partner, shall be treated as being in Great Britain for the duration of his posting 81 .]
[ (1A) For the purposes of paragraph (1)(aa), a [person is not subject to immigration control 79] if-
(a) he is a person recorded by the secretary of state as a refugee within the definition in article I of the convention relating to the status of refugees done at Geneva on 28th July 195182, as extended by Article 1(2) of the Protocol relating to the Status of refugees done at New York on 31st January 196783;
(b) he is a person who has been granted exceptional leave outside the provisions of the immigration rules within the meaning of the Immigration Act 19718485;
[ (i) to enter United Kingdom by an immigration officer appointed for the purposes of the Immigration Act 1971(e); or
(ii) to remain in the United Kingdom by the Secretary of State]86
(c) he is a national, or a member of the family of a national, of a State contracting party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 as adjusted by the Protocol signed at Brussels on 17th March 199387; or
(d) he is a person who is-
(i) lawfully working in Great Britain and is a national of a State with which the Community has concluded an Agreement under article 23888 of the Treaty establishing the European community89 providing, in the field of social security, or the equal treatment of workers who are national of the signatory State and their families,
or
(ii) a member of the family of, and living with, such a person.90]
[or
(e) he is a person who-
(i) has been given leave to enter, or remain in, the United Kingdom by the Secretary of State upon the undertaking of another person, or persons, pursuant to the immigration rules within the meaning of the Immigration Act 197191, to be responsible for his maintenance and accommodation, and
(ii) has been resident in the United Kingdom for a period of at least 5 years beginning with his date of entry into the United Kingdom, or the date on which the undertaking was given in respect of him, whichever is the later, or
(f) he is a person who-
(i) has been given leave to enter, or remain in, the United Kingdom by the Secretary of State upon the undertaking of another person, or persons, pursuant to the immigration rules mentioned in sub-paragraph (e) above, to be responsible for his maintenance and accommodation, and
(ii) has been resident in the United Kingdom for less than 5 years beginning with his date of entry into the United Kingdom, or the date on which the undertaking was given in respect of him, whichever is the later, but the person giving the undertaking has died or, where the undertaking was given by more than one person, they have all died 92 .]
(2) A person shall be treated as not being in great Britain during any period for which he, or his partner, is entitled to be paid [ working families' tax credit or disabled person's tax credit93] under the law of Northern Ireland.
[ Remunerative work
4.-(1) For the purposes of Part II of the Act as it applies to [ working families' tax credit94], and subject to paragraph (3), a person shall be treated as engaged in remunerative work where-
(a) the work he undertakes is for not less than 16 hours per week;
(b) the work is done for payment or in expectation of payment; and
(c) he is employed at the date of claim and satisfies the requirements of paragraph (5).
(2) A person who does not satisfy all the requirements of sub-paragraphs (a) to (c) of paragraph (1) shall not be treated as engaged in remunerative work.
[ (3) A person who otherwise satisfies all the requirements of paragraph(1) shall not be treated as engaged in remunerative work insofar as-
(a) he is engaged by a charitable or voluntary organisation or is a volunteer, where the only payment received by him or due to be paid to him is a payment which is to be disregarded under regulation 24(2) and paragraph 2 of schedule 2 (sums to be disregarded in the calculation of income other than earnings);
(b) he is engaged in caring for a person in respect of whom he receives payments to which paragraph 24 of Schedule 2 refers; or
(c) he is engaged on a scheme for which a training allowance is being paid. 95]
S.I.2000 No.3134 regn. 12 modifies regulation 4(3) from 28 November 2000 to 27 November 2001, unless revoked earlier, by adding sub-para.(d).
[(d) he is participating in the programme known as the intensive activity period of the New Deal pilots for 25 plus as defined for the purposes of the Social Security (New Deal Pilot) Regulations 2000 in regulation 2(1) of those Regulations.]
[ (da) he is participating in the Intensive Activity Period specified in regulation 75(1)(a)(iv) of the Jobseeker's Allowance Regulations 1996 or in the Intensive Activity Period for 50 plus 96 ; ]
[(e) he is engaged in an activity in respect of which-
(i) a sports award has been made, or is to be made, to him; and
(ii) no other payment is made or is expected to be made to him97] [ or ;
(f) he is receipt of an employment zone subsistence allowance 98 ] .
(4) [ Subject to [ paragraphs (4A) and (4B) 99 ] , 100] in determining for the purposes of sub-paragraph (a) of paragraph (1) whether the work a person undertakes is for not less than 16 hours per week-
(a) there shall be included in the calculation any time allowed for meals or refreshment but only where the person is, or expects to be, paid earnings in respect of that time; and
(b) if he is a person to whom regulation 14(5) (normal weekly earnings of employed earners) applies, the hours worked shall be calculated by reference to the average number of hours which his employer expects him to work in a week; or
(c) where paragraph (b) does not apply and-
(i) a recognised cycle of working has been established at the date of claim, the hours worked shall be calculated by reference to the average number of hours worked in a week over the period of one complete cycle (including, where the cycle involves periods in which the person does not normally work, those periods, but disregarding any other absences); or
(ii) no recognised cycle of working has been established at the date of claim, the hours worked shall be calculated by reference to-
(aa) the average number of hours worked over the five weeks immediately preceding the week of claim, or such other longer time preceding that week as may, in the particular case, enable the person's weekly average hours of work to be determined more accurately; or
(bb) where he is a self-employed earner [ or director 101 ] and he has worked for less than 5 weeks at the date of claim [ or he has, in the five weeks immediately preceding the week of claim, increased the number of hours that he works from below 16 hours to 16 hours or more102], the average number of hours he expects to work in a week [ ; or
(d) in the case of a woman on maternity leave at the date of the claim , the hours, the hours worked shall be calculated on the basis of a declaration made by her of the average hours worked per week prior to the commencement of her maternity leave 103 .]
[(4A) Where for the purpose of paragraph (4)(c)(i), a person's recognised cycle of work at a school, other educational establishment or other place of employment is one year and includes periods of school holidays or similar vacations during which he does not work, those periods and any other periods not forming part of such holidays or vacations during which he is not required to work shall be disregard in establishing the average hours for which he is engaged in work104.]
[ (4B) Any period where a person is absent from work by reason of jury service shall be disregarded in establishing the average hours for which he is engaged in work 105. ]
(5) Subject to paragraph (6), the requirement of this paragraph are that the person-
(a) worked not less than 16 hours in either-
(i) the week of claim; or
(ii) either of the two weeks immediately preceding the week of claim; or
(b) is expected by his employer to work or, where he is a self-employed earner he expects to work, not less than 16 hours in the week next following the week of claim; or
(c) cannot satisfy the requirements of either sub-paragraph (a) or (b) above and at the date of claim he is absent from work by reason of a recognised, customary or other holiday but he is expected by his employer to work or, where he is self-employed earner he expects to work, not less than 16 hours in the week following his return to work from that holiday, [ or
(d) cannot satisfy the requirements of sub-paragraph (a) or (b) above and at the date of claim he is absent from work by reason of jury service but he is expected by his employer to work or, where he is a self-employed earner , he expects to work, not less than 16 hours in the week following his return to work from that jury service 106 ,] [or
(e) cannot satisfy the requirements of sub-paragraph (a) or (b) above at the date of claim because she is on maternity leave at that date but-
(i) prior to the commencement of her maternity leave, she worked, on average, not less than 16 hours a week, and
(ii) she is entitled to maternity allowance or statutory maternity pay at the date of the claim 107 , ]
and for the purposes of calculating the number of hours worked, sub-paragraph (a) of paragraph (4) shall apply to this paragraphs it applies to sub-paragraph (a) of paragraph (1).
[(6) For the purposes of paragraph (5)-
(a) work which a person does only qualifies if-
(i) it is the work he normally does, and
(ii) it is likely to last for a period of 5 weeks or more beginning with the week of claim; and
(b) a person shall be treated as not on a recognised, customary or other holiday on any day on which the person is on maternity leave or is absent from work because he is ill108.]
(7) Where a person is treated as engaged in remunerative work in a accordance with the above paragraphs, he shall also be treated as normally engaged in remunerative work.
(8109) 110]
[ Further provision as to remunerative work
4A. Whether, for the purposes of regulation 46(1)(aa) (determination of appropriate maximum [ working families' tax credit111]) and paragraph 1A of Schedule 4112, the work a person undertakes is for not less than 30 hours per week shall be determined in accordance with regulation 4(1)(b), (3), (4) and (4A) except that for the words "16 hours" in paragraph (4) there shall be substituted the words "30 hours".113]
(There is no longer a regulation 5).
Part III
MEMBERSHIP OF A FAMILY
Persons of a prescribed description
6.-(1) Subject to paragraph (2) a person of a prescribed description for the purposes of section 20(5)(c) (entitlement) and section 20(11) of the Act (definition of the family) as it applies to [ working families' tax credit114] is a person aged 16 or over but under 19 who is receiving full-time education within [section 142(1) (c ) of the Contributions and Benefits Act 115] (meaning of child), and in these Regulations such a person is referred to as "a young person".
[ (2) Paragraph (1) shall not apply to a person-
(a) who is entitled to income support or would, but for section 20(9) of the Act (provision against dual entitlement of members of family), be so entitled;
[ (aa) who is entitled to income-based jobseeker's allowance or would, but for section 3(1)(d) of the Jobseekers Act 1995 (provision against dual entitlement of members of family), be so entitled;116]
(b) who is receiving advanced education within the meaning of regulation 1(2) of the Child Benefit (General) Regulations 1976117; or
(c) who has ceased to receive full-time education but is to continue to be treated as a child by virtue of regulation 7 of the Child Benefit (General) Regulations 1976118].
Circumstances in which a person is to be treated as responsible or not responsible for another
7.-(1) Subject to the following provisions of this regulation, a person shall be treated as responsible for a child or young person who is normally living with him.
(2) Where a child or young person spends equal amounts of time in different households, or where there is a question as to which household he is living in, the child or young person shall be treated for the purposes of paragraph (1) as normally living with-
(a) the person who is receiving child benefit in respect of him; or
(b) if there is no such person-
(i) where only one claim for child benefit has been made in respect of him, the person who made that claim, or
(ii) in any other case the person who has the primary responsibility for him.
(3) For the purposes of these Regulations a child or young person shall be treated as the responsibility of only one person during the period of an award and any person other than the one treated as responsible for the child or young person under the foregoing paragraphs shall be treated as not so responsible.
Membership of the same household
8.-(1) Except in a case to which paragraph (2) applies, where a claimant or any partner is treated as responsible for a child or young person by virtue of regulation 7 (circumstances where a person is treated as responsible or not responsible for another), that child or young person and any child of that child or young person shall be treated as a member of the claimant's household.
(2) A child or young person shall not be treated as a member of the claimant's household in any case where the child or young person-
(a) is a patient or in residential accommodation on account of physical or mental handicap or physical or mental illness and has been so accommodated for the 12 weeks immediately before the date of claim and is no longer in regular contact with the claimant or any member of the claimant's household; or
[ (b) has been placed with the claimant or his partner by a local adoption;
(c) has been placed with the claimant or his partner by a local authority under section 23(2)(a) of the Children Act 1989119 or by a voluntary organisation under section 59(1)(a) of that Act; or120]
[ (b) has been boarded out with the claimant or his partner prior to adoption; or
(c) is board out with the claimant or his partner under a relevant enactment; or121]
(d) has been placed for adoption with the claimant or his partner pursuant to a decision under the Adoption agencies Regulations 1983122 or the Adoption agencies (Scotland) Regulations 1984123; or
(e) is detained in custody under a sentence imposed by a court.
(3) In this regulation-
(a) "patient" means a person (other than a person who is serving a sentence imposed by a court in a prison or youth custody institution) who is regarded as receiving free in-patient treatment within the meaning of the Social Security (Hospital In-Patients) Regulations 1975124.
(b)125
[ (b) "relevant enactment" means the Army Act 1955126, the Air Force Act 1955127, the Naval Discipline Act 1957128, the Adoption Act 1958129, the Matrimonial Proceedings (Children) Act 1958130, the Children Act 1958131, the Social Work (Scotland) Act 1968132, the Family Law Reform Act 1969133, the Children and Young Persons Act 1969134, the Matrimonial Causes Act 1973135, the Guardianship Act 1973136, the Children Act 1975137, the Domestic Proceedings and Magistrates" Courts Act 1978138, the Adoption (Scotland) Act 1978139, the Child Care Act 1980140, and the Foster Children Act 1980141;]
(c) "residential accommodation" means accommodation for a person whose stay in the accommodation has become other than temporary which is provided under-
(i) sections 21 to 24 and 26 of the National Assistance Act 1948142 (provision of accommodation); or
(ii) section 21(1) of, and paragraph 1 or 2 of Schedule 8 to, the National Health Service Act 1977143 (prevention, care and after-care) or, in Scotland, for the purposes of section 27 of the National Health Services (Scotland) Act 1947144 (prevention of illness and after- care) or under section 59 of the Social Work (Scotland) Act 1968145 (provision of residential and other establishments) or under section 7 of the Mental Health (Scotland) Act 1984146 (function of local authorities)
Circumstances in which a person is to be treated as being no longer a member of the same household
9.-[ (1) Subject to the following provisions of this regulation, where the claimant and any partner of his are living apart from each other they shall be treated as members of the same household unless they do not intend to resume living together.147]
(2) Where one of the members of a married or unmarried couple is a hospital [ patient148] or [ detained in custody] he shall not be treated, on this account, as ceasing to be a member of the same household as his partner-
(a) unless he has been [ a patient] in a hospital for 52 weeks or more; or
(b) unless he is a patient detained in a hospital provided under section 4 of the National Health Service Act 1977149 (special hospitals) or section 90(1) of the Mental Health (Scotland) Act 1984 (provision of hospitals for patients requiring special security); or
(c) unless he is [ detained in custody whilst] serving a sentence of 52 weeks or more imposed by a court,
but shall be treated as not being a member of the same household as his partner wherever the conditions in sub-paragraphs (a), (b) or (c) are fulfilled.
[ (3) In this regulation "patient" has the same meaning as in regulation 8(3)(a) (membership of the same household).150]
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