The Statutory Parental Bereavement Pay (General) Regulations 2020

Made: 9th March 2020

Coming into force in accordance with regulation 1

The Secretary of State, in exercise of the powers conferred by sections 171ZZ6(3) and (4), 171ZZ7(2) and (4)(a), (c) to (h), 171ZZ8(2) and (3), 171ZZ9(1) to (5), (8) and (9), 171ZZ11(3), 171ZZ14(3) to (5), (7) and (8), and 175(3) and (4) of the Social Security Contributions and Benefits Act 1992, and section 5(1)(g), (i), (l) and (p) of the Social Security Administration Act 1992 and with the concurrence of the Commissioners for Her Majesty's Revenue and Customs in so far as such concurrence is required, makes the following Regulations.

A draft of these Regulations was laid before Parliament in accordance with section 176(1) of the Social Security Contributions and Benefits Act 1992 and approved by resolution of each House of Parliament.

This instrument contains only regulations made by virtue of, or consequential upon, the Schedule to the Parental Bereavement (Leave and Pay) Act 2018 and is made before the end of the period of 6 months beginning with the coming into force of that enactment .

PART 1 — GENERAL

Citation and commencement

1

These Regulations may be cited as the Statutory Parental Bereavement Pay (General) Regulations 2020 and come into force on the day after the day on which they are made.

Application

2

These Regulations apply in respect of children who die on or after 6th April 2020.

Interpretation

3

• (1) In these Regulations—

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

• “adopter” means a person who intends to adopt C;

• “C” means the child in relation to whom an entitlement to statutory parental bereavement pay arises;

• “the Commissioners” means the Commissioners for Her Majesty's Revenue and Customs;

• “intended parent” means a person who—has applied, or intended to apply during the period of 6 months beginning with the day of C's birth—with another person for an order under section 54 (parental orders: two applicants) of the Human Fertilisation and Embryology Act 2008 in respect of C, oras the sole applicant for an order under section 54A (parental orders: one applicant) of that Act in respect of C, andexpected the court to make such an order on that application in respect of C;

• “official notification” means written notification, issued by or on behalf of the relevant domestic authority, that it is prepared to issue a certificate to the overseas authority concerned with the adoption of C, or has issued a certificate and sent it to that authority, confirming, in either case, that the adopter is eligible to adopt and has been assessed and approved as being a suitable adoptive parent;

• “placed for adoption” means placed—for adoption under the Adoption and Children Act 2002 or the Adoption and Children (Scotland) Act 2007 ,in accordance with section 22C of the Children Act 1989 (ways in which looked after children are to be accommodated and maintained) with a local authority foster parent who is also a prospective adopter, following consideration in accordance with subsection (9B)(c) of that section , orin accordance with section 81 of the Social Services and Well-being (Wales) Act 2014 with a prospective adopter, following consideration in accordance with subsection (10) of that section;

• “prospective adopter” 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 or regulation 28(3) of the Adoption Agencies (Wales) Regulations 2005 ;

• “relevant domestic authority” means—in the case of an adopter to whom Part 3 of the Adoptions with a Foreign Element Regulations 2005 apply and who is habitually resident in Wales, the National Assembly for Wales,in the case of an adopter to whom the Adoptions with a Foreign Element (Scotland) Regulations 2009 apply and who is habitually resident in Scotland, the Scottish Ministers, andin any other case, the Secretary of State;

• “statutory parental bereavement pay” means statutory parental bereavement pay payable in accordance with Part 12ZD of the 1992 Act;

• “week”, except in Part 3, means a period of seven days ;

• “week of C's death” means the week, beginning with a Sunday, in which C dies.

• (2) In these Regulations—

• (a) references to a child include a child stillborn after twenty-four weeks of pregnancy, and

• (b) references to the death of a child are to be read, in relation to a stillborn child, as references to the birth of the child.

PART 2 — ENTITLEMENT

Conditions of entitlement to statutory parental bereavement pay

4

• (1) The conditions prescribed under section 171ZZ6(3) of the 1992 Act (conditions as to relationship with a child who has died) are that, at the date of C's death, the person is—

• (a) C's parent;

• (b) C's natural parent and named in an order made pursuant to section 51A(2)(a) of the Adoption and Children Act 2002 or section 11(3)(aa) of the Children (Scotland) Act 1995 , provided that such an order has not subsequently been revoked or discharged;

• (c) a person with whom C has been placed for adoption, for so long as that placement has not been disrupted as mentioned in paragraph (2);

• (d) an adopter—

• (i) with whom C was living, following C's entry into Great Britain from outside the United Kingdom in connection with or for the purposes of adoption which does not involve the placement of C for adoption under the law of any part of the United Kingdom, and

• (ii) who has received official notification in respect of C;

• (e) an intended parent of C;

• (f) C's parent in fact; or

• (g) the partner of P.

• (2) For the purposes of paragraph (1)(c), a placement has been disrupted—

• (a) when C has been returned under sections 31 to 35 of the Adoption and Children Act 2002 ,

• (b) in Scotland, when C has been returned to the adoption agency, adoption society or nominated person in accordance with section 25(6) of the Adoption and Children (Scotland) Act 2007, or

• (c) when C's placement—

• (i) with a local authority foster parent who is also a prospective adopter in accordance with section 22C of the Children Act 1989 following consideration in accordance with subsection (9B)(c) of that section, or

• (ii) with a prospective adopter in accordance with section 81 of the Social Services and Well-being (Wales) Act 2014,

has been terminated.

• (3) Subject to paragraph (5), a person is C's parent in fact if that person, for a continuous period of at least four weeks ending with the day on which C dies—

• (a) lived with C in the person's own home, and

• (b) had day to day responsibility for C's care.

• (4) For the purposes of the continuous period mentioned in paragraph (3), no account is to be taken of any absences of a temporary or intermittent nature.

• (5) A person is not to be regarded as C's parent in fact if—

• (a) C is in the care of that person in premises in which any parent of C's, or any person who is not a parent of C's but who has responsibility for C, is living, or

• (b) that person was or is entitled to receive remuneration, whether by way of wages or otherwise, in respect of the care of C.

• (6) A person has responsibility for C, for the purposes of paragraph (5)(a), if the person—

• (a) has parental responsibility, within the meaning of section 3 of the Children Act 1989, or

• (b) in Scotland, has parental responsibilities or parental rights, within the meaning of sections 1 and 2 of the Children (Scotland) Act 1995 .

• (7) For the purposes of paragraph (5)(b), the following payments are not to be regarded as remuneration—

• (a) any fee or allowance paid by a local authority to a foster parent;

• (b) payments wholly or mainly intended to reimburse the person for expenses which arise from, or are expected to arise from, the person's care of C;

• (c) amounts received pursuant to the terms of a will, trust or similar instrument which makes provision in respect of C's care.

• (8) In this regulation—

• (a) “P” means any person who satisfies one of the conditions in paragraphs (1)(a) to (f);

• (b) “partner” means a person (whether of a different sex or the same sex) who lives with C and P in an enduring family relationship but is not a relative of P of a kind specified in sub-paragraph (c);

• (c) the relatives of P referred to in sub-paragraph (b) are P's parent, grandparent, sister, brother, aunt or uncle;

• (d) references to relationships in sub-paragraph (c)—

• (i) 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

• (ii) include the relationship of a child with his adoptive, or former adoptive, parents,

but do not include any other adoptive relationships.

Number of weeks of pay

5

The number of weeks in respect of which a person is entitled to payments of statutory parental bereavement pay is two weeks.

Options in respect of payment of statutory parental bereavement pay

6

A person may choose for statutory parental bereavement pay to be paid in respect of—

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

• (b) discontinuous periods of a week each.

Qualifying period

7

The qualifying period for the purposes of section 171ZZ9(5) of the 1992 Act (period within which statutory parental bereavement pay is payable) is a period of 56 weeks beginning with the date of C's death.

Notice and evidence requirements for statutory parental bereavement pay

8

• (1) The notice provided for in section 171ZZ7(1) of the 1992 Act (notice to be given stating the week or weeks in respect of which payments are to be made) must be given to whoever will be liable to pay statutory parental bereavement pay—

• (a) before the end of the period of 28 days beginning with the first day of the period in respect of which payment of statutory parental bereavement pay is to be made, or

• (b) in a case where it is not reasonably practicable for the person to give the notice in accordance with sub-paragraph (a), as soon as reasonably practicable.

• (2) A person must provide evidence of entitlement to statutory parental bereavement pay by providing in writing to whoever will be liable to pay statutory parental bereavement pay—

• (a) the information specified in paragraph (3), and

• (b) a declaration that the person meets one of the conditions prescribed in regulation 4(1).

• (3) The information referred to in paragraph (2)(a) is as follows—

• (a) the name of the person claiming the statutory parental bereavement pay, and

• (b) the date of C's death.

• (4) The information referred to in paragraph (3) must be provided at the same time as a notice is given under paragraph (1).

• (5) The declaration referred to in paragraph (2)(b) must be provided at the same time as a notice is first given under paragraph (1) in respect of C's death.

• (6) Where notice under paragraph (1) is given prior to the start of the week or weeks specified in that notice, the person may withdraw that notice by giving notice of withdrawal in writing to the person who will be liable to pay statutory parental bereavement pay in the manner specified in paragraphs (7) and (8).

• (7) Where the notice under paragraph (1) states two weeks in respect of which statutory parental bereavement pay is to be paid, notice of withdrawal may be given in relation to either one or both of those weeks, regardless of whether those weeks are consecutive or non-consecutive.

• (8) Where the notice of withdrawal relates to a week which begins—

• (a) in Period A, it must be given no later than on the first day of that week, and

• (b) in Period B, it must be given no later than one week before the start of that week.

• (9) In this regulation—

• “Period A” means the period of 56 days beginning with the date of C's death;

• “Period B” means the period beginning the day after the end of Period A and ending with the end of the period specified in regulation 7.

Cases where there is no liability to pay statutory parental bereavement pay

9

• (1) There is no liability to pay statutory parental bereavement pay to a person in respect of any week—

• (a) during any part of which the person who is entitled to that pay is entitled to statutory sick pay under Part 11 of the 1992 Act,

• (b) following that in which the person entitled to it has died, or

• (c) during any part of which the person who is entitled to that pay is detained in legal custody (unless one of the circumstances in paragraph (2) applies) or sentenced to a term of imprisonment (except where the sentence is suspended).

• (2) There is liability to pay statutory parental bereavement 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.

Work during period of payment of statutory parental bereavement pay

10

• (1) Despite section 171ZZ9(8) of the 1992 Act (statutory parental bereavement pay not payable to a person in respect of a week during any part of which the person works for any employer who is not liable to pay the person statutory parental bereavement pay), statutory parental bereavement pay is payable to a person in respect of a statutory pay week during any part of which the person works only for an employer—

• (a) who is not liable to pay the person statutory parental bereavement pay, and

• (b) for whom the person has worked in the week immediately preceding the week of C's death.

• (2) Where a person works for an employer falling within paragraph (1)(a) but not paragraph (1)(b) for any part of a period which is specified by that person in a notice under regulation 8(1), the person must notify the employer liable to pay statutory parental bereavement pay of the fact of that work within seven days of the first day during which the person does such work.

• (3) The notification mentioned in paragraph (2) must be in writing, if the employer who has been liable to pay statutory parental bereavement pay so requests.

PART 3 — CONDITIONS OF ENTITLEMENT RELATING TO EMPLOYMENT AND EARNINGS

Treatment of persons as employees

11

• (1) A person is treated as an employee for the purposes of Part 12ZD of the 1992 Act (even though not falling within the definition of ‘employee’ in section 171ZZ14(2) of that Act) where, and in so far as, that person is treated as an employed earner by virtue of the Social Security (Categorisation of Earners) Regulations 1978 (but see paragraph (3)).

• (2) A person shall not be treated as an employee for the purposes of Part 12ZD of the 1992 Act (even though falling within the definition of ‘employee’ in section 171ZZ14(2) of that Act) where, and in so far as, that person is not treated as an employed earner by virtue of those Regulations (but see paragraph (3)).

• (3) Paragraphs (1) and (2) shall have effect in relation to a person who—

• (a) is under the age of 16, and

• (b) would, or as the case may be, would not have been treated as an employed earner by virtue of those Regulations had they been over that age,

as they have effect in relation to a person who is, or as the case may be, is not treated as an employed earner by virtue of those Regulations.

• (4) A person is treated as an employee for the purposes of Part 12ZD of the 1992 Act (even though not falling within the definition of ‘employee’ in section 171ZZ14(2) of that Act) where that person is in employed earner's employment under a contract of apprenticeship.

• (5) A person is not to be treated as an employee for the purposes of Part 12ZD of the 1992 Act (even though falling within the definition of ‘employee’ in section 171ZZ14(2) of that Act) where that person is in employed earner's employment but that person's employer—

• (a) does not fulfil the conditions prescribed in regulation 145(1) (conditions as to residence or presence) of the Social Security (Contributions) Regulations 2001 in so far as that provision relates to residence or presence in Great Britain, or

• (b) is a person who, by reason of any international treaty to which the United Kingdom is a party or of any international convention binding the United Kingdom—

• (i) is exempt from the provisions of the 1992 Act, or

• (ii) is a person against whom the provisions of the 1992 Act are not enforceable.

Continuous employment

12

• (1) A week is to be treated for the purposes of section 171ZZ6 of the 1992 Act as part of a period of continuous employment with the employer even though no contract of service exists with that employer in respect of that week in the circumstances mentioned in paragraph (2) and subject to paragraphs (3) and (4).

• (2) The circumstances mentioned in paragraph (1) are that in any week the person is, for the whole or part of the week—

• (a) incapable of work in consequence of sickness or injury,

• (b) absent from work on account of a temporary cessation of work, or

• (c) absent from work in circumstances such that, by arrangement or custom, that person is regarded as continuing in the employment of their employer for all or any purposes,

and returns to work for their employer after the incapacity for or absence from work.

• (3) Incapacity for work which lasts for more than 26 consecutive weeks shall not count for the purposes of paragraph (2)(a).

• (4) Where a person—

• (a) is an employee in employed earner's employment in which the custom is for the employer—

• (i) to offer work for a fixed period of not more than 26 consecutive weeks,

• (ii) to offer work for such period on two or more occasions in a year for periods which do not overlap, and