The Working Tax Credit (Entitlement and Maximum Rate) Regulations 2002

Child care elementU.K.

Entitlement to child care element of working tax creditU.K.

13.—(1) The determination of the maximum rate must include a child care element where that person, or in the case of a joint claim at least one of those persons, is incurring relevant child care charges and—

(a)is a person, not being a member of a F1... couple, engaged in [F2qualifying remunerative work];

[F3(b)is a member or are members of a F1... couple where both are engaged in qualifying remunerative work [F4for not less than 16 hours per week]; or

(c)is a member or are members of a F1... couple where one is engaged in qualifying remunerative work [F4for not less than 16 hours per week] and the other—

(i)is incapacitated;

(ii)is an in-patient in hospital; or

(iii)is in prison (whether serving a custodial sentence or remanded in custody awaiting trial or sentence)F5...][F6; or]

[F7(iv)is entitled to carer’s allowance under section 70 of the Social Security Contributions and Benefits Act 1992] [F8; or]

[F9(v)is entitled to carer’s assistance given in accordance with regulations made under section 28 of the Social Security (Scotland) Act 2018;]

(2) For the purposes of paragraph (1) a person is not treated as incurring relevant child care charges where the average weekly charge calculated in accordance with regulation 15 is nil or where an agreement within regulation 15(4) has not yet commenced.

F10(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F11(4) For the purposes of paragraph (1)(c)(I) the other member of a couple is incapacitated in any of the circumstances specified in [F12paragraphs (5) to (12)].]

[F13(5) The circumstances specified in this paragraph are where housing benefit is payable under Part 7 of the Contributions and Benefits Act to the other member or the other member’s partner and the applicable amount of the person entitled to the benefit includes a disability premium on account of the other member’s incapacity or regulation 28(1)(c) of the Housing Benefit Regulations 2006 (treatment of child care charges) applies in that person’s case.]

(6) The circumstances specified in this paragraph are where there is payable [F14or – in the case of a credit – an entitlement] in respect of him one or more of the following F15...—

(a)short-term incapacity benefit [F16payable at the higher rate] under section 30A of the Contributions and Benefits Act M1;

(b)long term incapacity benefit under section 40 or 41 of the Contributions and Benefits Act M2;

(c)attendance allowance under section 64 of that Act;

(d)severe disablement allowance under section 68 of that Act;

(e)disability living allowance under section 71 of that Act;

(f)increase of disablement pension under section 104 of that Act;

(g)a pension increase under a war pension scheme or an industrial injuries scheme which is analogous to an allowance or increase of disablement pension under sub-paragraph (b), (d) or (e) above.

[F17(h)contributory employment and support allowance [F18or a limited capability for work credit,] where entitlement to that allowance [F19or credit] or statutory sick pay [F20or a benefit or allowance mentioned in sub-paragraph (a) or (b) or (d),] has existed for a period of 28 weeks comprising one continuous period or two or more periods which are linked together provided that, if the person received statutory sick pay, the person satisfied the first and second contribution conditions set out in paragraphs 1 and 2 of Schedule 1 to the Welfare Reform Act.]

[F21(i)personal independence payment.]

[F22(j)armed forces independence payment.]

[F23(k)any benefit, allowance or credit of another EEA state or Switzerland which is substantially similar in character to the benefits, allowances and credits in sub-paragraphs (a) to (j).]

[F24(l)Scottish disability assistance.]

[F25(6A) In paragraph (6)(h), the reference to contributory employment and support allowance is a reference to an allowance under Part 1 of the Welfare Reform Act 2007 (“the 2007 Act”) as amended by the provisions of Schedule 3, and Part 1 of Schedule 14, to the Welfare Reform Act 2012 that remove references to an income-related allowance, and a contributory allowance under Part 1 of the 2007 Act as that Part has effect apart from those provisions.]

(7) The circumstances specified in this paragraph are where a pension or allowance to which sub-paragraph [F26(c)], (d), (e) or (f) of paragraph (6) refers, was payable on account of his incapacity but has ceased to be payable only in consequence of his becoming a patient.

(8) The circumstances specified in this paragraph are where he has an invalid carriage or other vehicle provided to him under section 5(2)(a) of and Schedule 2 to the National Health Service Act 1977 M3, section 46 of the National Health Service (Scotland) Act 1978 M4; or Article 30(1) of the Health and Personal Social Services (Northern Ireland) Order 1972 M5.

[F27(9) The circumstances specified in this paragraph are where, on 31st March 2013, council tax benefit was payable under Part 7 of the Contributions and Benefits Act (as then in force) to the other member or the other member’s partner and the applicable amount of the person entitled to the benefit included a disability premium on account of the other member’s incapacity.

(10) Paragraph (9) is subject to paragraphs (11) and (12).

(11) Paragraph (9) does not apply unless the other member of the couple was incapacitated (for the purposes of paragraph (1)(c)(i) and regulation 4(1) Second condition, Third variation (c)(i)) solely by virtue of that person or their partner having been in receipt, on 31st March 2013, of council tax benefit which included a disability premium on account of the other member’s incapacity, and none of the other circumstances specified in paragraphs (5) to (8) applied on that date.

(12) If—

(a)the other member of the couple is incapacitated in the circumstances specified in paragraph (9), and

(b)the couple ceases to be entitled to working tax credit (for any reason) on or after 1st April 2013,

that member of the couple shall not be treated as incapacitated in the circumstances specified in paragraph (9) in relation to any subsequent claim.]

14.—(1) [F28Subject to paragraph (1A),] for the purposes of section 12 of the Act charges incurred for child care are charges paid by the person, or in the case of a joint claim, by either or both of the persons, for child care provided for any child for whom the person, or at least one of the persons, is responsible [F29within the meaning of regulation 3 of the Child Tax Credit Regulations 2002].

[F30(1A) Child care charges do not include charges in respect of care provided by

[F31(a) a relative of the child, wholly or mainly in the child’s home, or ]

F32(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F33(c)a provider mentioned in regulation 14(2)(c)(v), in circumstances where the care is excluded from being qualifying child care by Article 4(2)(c) of the Tax Credits (Approval of Home Child Care Providers) Scheme (Northern Ireland) 2006.]

[F34(d)a provider mentioned in [F35regulation 14(2)(f)(vii)], in circumstances where the care is excluded from being qualifying child care by [F36Article 5(2)(d) of The Approval of Home Childcare Providers (Wales) Scheme 2021].]

[F37(e)a foster parent[F38, a foster carer or a kinship carer] in respect of a child whom [F39that person is fostering or is looking after as the child’s kinship carer].]]

[F30(1B) For the purposes of this regulation—

(a)“relative” means parent, grandparent, aunt, uncle, brother or sister whether by blood, half blood, marriage[F40, civil partnership] or affinity;

(b)“the child’s home” means the home of the person, or in the case of a joint claim of either or both of the persons, responsible for the child.]

[F41(c)“foster parent” in relation to a child—

(i)in relation to England, means a person with whom the child is placed under [F42the Care Planning, Placement and Case Review (England) Regulations 2010];

(ii)in relation to Wales, means a person with whom the child is placed under [F43the Care Planning, Placement and Case Review (Wales) Regulations 2015];

(iii)in relation to Northern Ireland, means a person with whom the child is placed under the Foster Placement (Children) Regulations (Northern Ireland) 1996; F44...

(d)“foster carer” and “kinship carer” have the meanings given in regulation 2 of the Looked After Children (Scotland) Regulations 2009][F45; and

(e)“Ministry of Defence personnel” means Her Majesty’s forces, which has the same meaning as in the Armed Forces Act 2006, and their families, and civil servants employed by the Ministry of Defence and their families.]

(2) “Child care” means care provided for a child—

(a)in England F46...—

F47(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F48(ii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F49(iia)by a person registered under Part 3 of the Childcare Act 2006;]

[F50(iii)in respect of any period on or before the last day the child is treated as a child for the purpose of this regulation by or under the direction of the proprietor of a school on the school premises [F51(subject to paragraph (2B))];]

(iv)F52...; F53...

F54(v). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F55(vi). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F56(vii)by a carer provided by a person who is a service provider within the meaning of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 in relation to the regulated activity of personal care within paragraph 1 of Schedule 1 to those Regulations;]

F57(viii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)in Scotland—

(i)by a person in circumstances where the care service provided by him consists of child minding or of day care of children within the meaning of [F58schedule 12 to the Public Services Reform (Scotland) Act 2010 and is registered under Part 5 of that Act]; F59...

[F60(ia)by a child care agency where the service consists of or includes supplying, or introducing to persons who use the service, child carers within the meaning of] [F61paragraph 5 of schedule 12 to the Public Services Reform (Scotland) Act 2010; or]

(ii)by a local authority in circumstances where the care service provided by the local authority consists of child minding or of day care of children within the meaning of [F62schedule 12 to the Public Services Reform (Scotland) Act 2010 and is registered under Part 5 of that Act; or]; F63...

F64(iii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)in Northern Ireland—

(i)by persons registered under Part XI of the Children (Northern Ireland) Order 1995 M6; F65...

(ii)by institutions and establishments exempt from registration under that Part by virtue of Article 121 of that Order; or

[F66(iii)in respect of any period ending on or before the day on which he ceases to be a child for the purposes of this regulation, where the care is provided out of school hours by a school on school premises or by [F67the Education Authority] or a Health and Social Services Trust; or

F68(iv). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

[F69(v)by a child care provider approved in accordance with the Tax Credits (Approval of Home Child Care Providers) Scheme (Northern Ireland) 2006.][F70; or

(vi)by a foster parent in relation to a child (other than one whom the foster parent is fostering) in circumstances where, but for the fact that the child is too old, the care would fall within one of the descriptions in paragraph (2C);]

[F71(d)anywhere outside the United Kingdom—

(i)by a child care provider, which is inspected by a person whose functions include regulating the provision of child care in accordance with the statutory requirements of the Department for Education, where a claim is made by Ministry of Defence personnel; or

(ii)in any other case, where care is provided within an EEA state or Switzerland, by a child care provider which is approved, regulated or accredited under the legislation of the relevant state, by a person whose functions include regulating the provision of education or child care;] or

F72(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F73(f)in Wales—

(i)by persons registered under [F74Part 2 of the Children and Families (Wales) Measure 2010];

(ii)[F75by a person in circumstances where, but for article 11, 12 or 14 of the Child Minding and Day Care Exceptions (Wales) Order 2010, the care would be day care for the purposes of Part 2 of the Children and Families (Wales) Measure 2010;]

(iii)in respect of any period on or before the last day he is treated as a child for the purposes of this regulation, where the care is provided out of school hours, by a school on school premises or by a local authority;

(iv)by a child care provider approved by an accredited organisation within the meaning given by regulation 4 of the Tax Credit (New Category of Child Care Provider) Regulations 1999;

F76(v). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F77(vi)by a person who is employed or engaged under a contract for services to provide care and support by the provider of a domiciliary support service within the meaning of Part 1 of the Regulation and Inspection of Social Care (Wales) Act 2016;]

(vii)by a child care provider approved under F78... [F79The Approval of Home Childcare Providers (Wales) Scheme 2021] [F80; or

(viii)by a foster parent in relation to a child (other than one whom the foster parent is fostering) in circumstances where, but for the fact that the child is too old, the care would fall within one of the descriptions in paragraph (2D).]]

[F81(2A) In paragraph (2)(a)(iii)—

“proprietor”, in relation to a school, means –

“school” means a school that Her Majesty’s Chief Inspector of Education, Children’s Services and Skills (the “Chief Inspector”) is or may be required to inspect;

“school premises” means premises that may be inspected as part of an inspection of the school by the Chief Inspector.

(2B) Care provided for a child in England is not [F82child care] under paragraph (2)(a)(iii) if—

(a)it is provided during school hours for a child who has reached compulsory school age, or

(b)it is provided in breach of a requirement to register under Part 3 of the Childcare Act 2006.]

[F83(2C) The descriptions referred to in paragraph (2)(c)(vi) are—

(a)child minding or day care for the purposes of Part 11 of the Children (Northern Ireland) Order 1995; and

(b)qualifying child care for the purposes of the Tax Credits (Approval of Home Child Care Providers) Scheme (Northern Ireland) 2006.]

[F83(2D) The descriptions referred to in paragraph (2)(f)(viii) are—

(a)child minding, or day care, for the purposes of Part 2 of the Children and Families (Wales) Measure 2010; and

(b)qualifying child care for the purposes of F84... [F85The Approval of Home Childcare Providers (Wales) Scheme 2021].]

(3) For the purposes of this regulation a person is a child until the last day of the week in which falls the 1st September following that child’s fifteenth birthday (or sixteenth birthday if the child is disabled).

(4) For the purposes of paragraph (3) a child is disabled where—

(a)a disability living allowance is payable [F86under section 71 of the Contributions and Benefits Act or section 31 of the Social Security (Scotland) Act 2018] in respect of that child, or has ceased to be payable solely because he is a patient;

[F87(b)the child is certified as severely sight impaired or blind by a consultant ophthalmologist;]

(c)the child ceased to be [F88certified as severely sight impaired or blind by a consultant ophthalmologist] within the 28 weeks immediately preceding the date of claim;F89...

(d)[F90personal independence payment is payable in respect of that child, or would be payable but for regulations under section 86(1) (hospital in-patients) of the Welfare Reform Act 2012][F91; or

(e)armed forces independence payment is payable in respect of that child.]

(5) Charges paid in respect of the child’s compulsory education or charges paid by a person to a partner or by a partner to the person in respect of any child for whom either or any of them is responsible are not relevant child care charges.

(6) Where regulation 15(4) (agreement for the provision of future child care) applies—

(a)the words “charges paid” in paragraph (1) include charges which will be incurred, and

(b)the words “child care provided” in paragraph (1) include care which will be provided.

F92(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) Relevant child care charges are calculated on a weekly basis in accordance with regulation 15.

Calculation of relevant child care chargesU.K.

15.—(1) Relevant child care charges are calculated by aggregating the average weekly charge paid for child care for each child in respect of whom charges are incurred [F93and rounding up the total to the nearest whole pound].

[F95(1A) In any case in which the charges in respect of child care are paid weekly, the average weekly charge for the purposes of paragraph (1) is established—

(a)where the charges are for a fixed weekly amount, by aggregating the average weekly charge paid for child care for each child in respect of whom charges are incurred in the most recent four complete weeks; or

(b)where the charges are for variable weekly amounts, by aggregating the charges for the previous 52 weeks and dividing the total by 52.]

(2) In any case in which the charges in respect of child care are paid monthly, the average weekly charge for the purposes of paragraph (1) is established—

(a)where the charges are for a fixed monthly amount, by multiplying that amount by 12 and dividing the product by 52; or

(b)where the charges are for variable monthly amounts, by aggregating the charges for the previous 12 months and dividing the total by 52.

(3) In a case where there is insufficient information for establishing the average weekly charge paid for child care in accordance with paragraphs (1) and (2), an officer of the Board shall estimate the charge—

(a)in accordance with information provided by the person or persons incurring the charges; and

(b)by any method which in the officer’s opinion is reasonable.

(4) If a person—

(a)has entered into an agreement for the provision of child care; and

(b)will incur under that agreement relevant child care charges in respect of child care during the period of the award,

the average weekly charge for child care is based upon a written estimate of the future weekly charges provided by that person.

Change of circumstancesU.K.

16.—(1) There is a relevant change in circumstances if—

F96(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)[F97during the period of an award, the weekly relevant child care charges, rounded up to the nearest whole pound]—

(i)exceed the average weekly charge calculated in accordance with regulation 15 by £10 a week or more;

(ii)are less than the average weekly charge calculated in accordance with regulation 15 by £10 a week or more; or

(iii)are nil.

[F98(2) For the purposes of paragraph (1), the weekly relevant child care charge—

(a)where the child care charges are for a fixed weekly amount, is the aggregate of the weekly charge paid for child care for each child in respect of whom charges are incurred in each of the four consecutive weeks in which the change occurred; or

(b)where the child care charges are for variable weekly amounts, is established by aggregating the anticipated weekly charge paid for child care for each child in respect of whom charges will be incurred for the following 52 weeks and dividing the total by 52.]

(3) If in any case the charges in respect of child care are paid monthly, the weekly relevant child care charge for the purposes of paragraph (1) is established—

(a)where the charges are for a fixed monthly amount, by multiplying that amount by 12 and dividing the product by 52; or

(b)where the charges are for variable monthly amounts, by aggregating the [F99anticipated] charges for the [F100next] 12 months and dividing the total by 52.

(4) In a case where there is insufficient information for establishing the weekly relevant child care charge paid for child care in accordance with paragraphs (2) and (3), an officer of the Board shall estimate the charge—

(a)in accordance with information provided by the person or persons incurring the charges; and

(b)by any method which in the officer’s opinion is reasonable.

(5) For the purpose of paragraph (1) the specified date is—

(a)where the child care charges are increased, the later of—

(i)the first day of the week in which the change occurred, and

(ii)the first day of the week in which falls the day which is [F101one month] prior to the date notification of the change is given;

[F102(b)where the child care charges are decreased—

(i)in a case where an award of child care charges is made for a fixed period, the length of which is known when the award is first made, the first day of the week following the end of that fixed period, and

(ii)in all other cases, the first day of the week following the four consecutive weeks in which the change occurred.]