CBTM12010 - Guardians Allowance: Entitlement - General conditions of entitlement

Social Security Contributions and Benefits Act 1992 section 77 Social Security Contributions and Benefits (Northern Ireland) Act 1992 section 77

A person is entitled to Guardian's Allowance if

  • they are entitled to Child Benefit for the child or qualifying young person and
  • both of the child’s or qualifying young person’s parents are dead or
  • one of the child’s or qualifying young person’s parents is dead and the claimant shows that the whereabouts of the other parent was unknown at the date of death and he has failed after all reasonable efforts to discover them or
  • one of the child’s or qualifying young person’s parents is dead and the other is in prison with a minimum sentence of two years remaining to serve following the death of the other parent and,
  • at least one of the child’s or qualifying young person’s parents satisfies, or satisfied immediately before their death, conditions prescribed at CBTM12070 by regulations about
  • nationality
  • residence
  • place of birth or
  • other matters.

Modifications

Guardian’s Allowance (General) Regulations 2003, regulations 4, 5 & 6

Civil Partnership Act 2004 Schedule 24

The above conditions can be modified if

  • the child or qualifying young person has been adopted
  • the child or qualifying young person is illegitimate and paternity is not established or
  • the child’s or qualifying young person’s parents were divorced or
  • the civil partnership of the child or young person’s parents has been dissolved.

Step-parents

Social Security Contributions and Benefits Act 1992 section 77(10)

A step parent is not regarded as a parent so a claim to Guardian’s Allowance can be considered.

Fosterers and Prospective Adopters are excluded from Child Benefit and so excluded from Guardian’s Allowance when the child is in care of Local Authority

Social Security Contributions and Benefits Act 1992 and Social Security Contributions and Benefits Act (NI) 1992 paragraph 1(c) of schedule 9

Social Security Contributions and Benefits Act 1992 section 77(1)(a)

Child Benefit (General) Regulations 2006 Regulation 16(3), (4) & (5)

Foster carers and prospective adopters who are receiving payments from the local authority are prevented from receiving Child Benefit and therefore Guardian’s Allowance for a child they are responsible for. The provision enabling continued entitlement for 8 weeks when a child goes into local authority care does not apply for these claimants.

The schedule 9 exclusion to Child Benefit and therefore Guardian’s Allowance applies immediately to “the carer” with whom a child or qualifying young person is placed under any of the provisions listed below. No entitlement exists to Child Benefit and therefore Guardian’s Allowance for a person with whom a child or qualifying young person —

  • is placed by a local authority in Great Britain in the foster parent’s home in accordance with the provisions of:
  • the Arrangements for Placements of Children (General) Regulations 1991,
  • the Arrangements to Look After Children (Scotland) Regulations 1996,
  • the Foster Placement (Children) Regulations 1991, or
  • the Fostering of Children (Scotland) Regulations 1996
and
  • that authority is making a payment, in respect of either the child or qualifying young person’s accommodation or maintenance or both, under section 23 of the 1989 Act or under section 26 of the 1995 Act to the carer;
  • is placed by an authority in Northern Ireland, in the carer’s home in accordance with the provisions of the Foster Placement (Children) Regulations (Northern Ireland) 1996 where the authority has a duty to provide accommodation and maintenance for the child under the Arrangements for Placement of Children (General) Regulations (Northern Ireland) 1996.

Entitlement to Child Benefit and therefore Guardian’s Allowance does not exist for any child or qualifying young person who:

  • is being looked after by a local authority in Great Britain or by an authority in Northern Ireland, and
  • has been placed for adoption by that authority in the home of a person proposing to adopt him,

provided that the local authority or authority is making a payment in respect of either the child or qualifying young person’s accommodation or maintenance or both, under section 23 of the 1989 Act, under section 26 of the 1995 Act or under Article 27 of the 1995 Order.

For the purposes of the above paragraph, placing for adoption means placing for adoption in accordance with —

  • the Adoption Agencies Regulations 1983,
  • the Adoption Agencies (Scotland) Regulations 1984, or
  • the Adoption Agencies Regulations (Northern Ireland) 1989.