CBTM12020 - Guardians Allowance: Entitlement - Adopted child or qualifying young person not in care of the local authority

Meaning of adopted

Guardians Allowance (General) Regulations 2003 regulation 2

'Adopted' means adopted pursuant to:

An order made in the UK, the Channel Islands or the Isle of Man;

An overseas adoption within the meaning of section 72(2) of theAdoption Act 1976;

A Convention adoption order within the meaning of section 72(1) ofthe Adoption Act 1976; or

A foreign adoption order within the meaning of section 4(3) of the Adoption (Hague Convention) Act (Northern Ireland) 1969

Adoption and Children Act 2002 section 67

Adoption is the process by which the rights and duties of the natural parents of a child are removed and are given to the adopter or adopters, which then treats the child in all respects as if born to them in marriage.

Adopted child or qualifying young person

Social Security (Contributions and Benefits) Act 1992 section 77(2) & (8)

Guardian’s Allowance (General) Regulations 2003 regulation 3 & 4

Where a child or qualifying young person has been adopted jointly by two people, a reference in section 77(2) of the Act or section77(2) of the Northern Ireland Act to the child’s or qualifying young person’s parents shall be read as a reference to those two people. They, and not the child’s or qualifying young person’s natural parents, are treated as the child’s or qualifying young person’s parents. Where a child or qualifying young person has been adopted by only one person, the circumstances to be satisfied in section 77(2) of the Act or section 77(2) of the Northern Ireland Act are that that person is dead. For Guardian’s Allowance to be awarded, the adoptive parent must be dead.

Parent not generally entitled to Guardian’s Allowance

Social Security (Contributions and Benefits) Act 1992 section 77(10) & (11)

A parent normally has no entitlement to Guardians Allowance in respect of a child or qualifying young person. If Guardian’s Allowance is claimed after adopting a child or qualifying young person it will not be paid because the adoptive parents are now the legal parents.

However, where a person was entitled to Guardian’s Allowance immediately before adopting the child or qualifying young person Guardian’s Allowance continues to be paid, even though the claimant is now legally their parent.

Adoptive parents dead and child or young person now with natural parent

Guardians Allowance is payable to a natural parent only where the child’s or qualifying young person’s adoptive parents are dead. The adoption effectively substitutes the adoptive parents as the child’s or qualifying young person’s natural parents.

R(G)4/83(T) Appendix

A child who had been adopted by his grandmother returned to live with his natural mother and her husband, who was not the child’s father, following the death of the grandmother. The natural mother claimed Guardian’s Allowance which was disallowed. On appeal the tribunal ruled that for the purposes of section 38(6) ofthe Social Security Act 1975, (now section 77(10) of the Social Security (Contributions and Benefits) Act 1992) a “parent” included the natural parent of a child who was adopted by another. This decision was then over ruled by the Court of Appeal who decided the provisions of paragraph 3(2) of schedule 1 to the Children’s Act 1975 applied - ‘an adopted child shall be treated in law as if he were not the child of any person other than the adopters or adopter’. They decided the issue was not one of parenthood but of being cared for by parents and following their death is now cared for by a stranger, in this case that stranger was the natural mother.