Explanatory Note

(This note is not part of the Regulations)

These Regulations exercise powers in Part 12ZE of the Social Security Contributions and Benefits Act 1992 (c. 4) (“the 1992 Act”), which was inserted by the Neonatal Care (Leave and Pay) Act 2023 (c. 20) to provide a new entitlement to statutory neonatal care pay for employees with responsibility for children receiving neonatal care.

Part 1 is introductory and includes provision specifying when the new entitlement arises.

Part 2 (regulations 5 to 12) relate to the conditions for entitlement to statutory neonatal care pay. Regulation 5 sets out the parental relationship required to be able to become entitled.

Regulation 6 introduces the Schedule where provision is made to modify the conditions for special circumstances where the child dies, adoption is disrupted or a parental order is not proceeded with. Regulation 7 sets out how the number of weeks of statutory neonatal care pay are determined and sets a maximum of 12 weeks of pay. Regulation 8 makes provision for cases where more than one child is in receipt of neonatal care. Regulation 9 sets out whether a person can choose to receive statutory neonatal care pay in a single block of one or more weeks or in non-consecutive blocks. Regulation 10 provides a qualifying period, during which a person can choose to receive the statutory neonatal care pay they are entitled to, of 68 weeks from the child’s birth.

Regulation 11 provides for when notice must be given of the week or weeks in respect of which statutory neonatal care pay is to be paid. This regulation also sets out the evidence that must be provided with a notice and includes provision for withdrawing a notice.

Regulation 12 sets out when there is no liability to make payments, including for example when the person is entitled to statutory sick pay or has died. Regulation 13 makes provision for when statutory neonatal care pay will remain payable despite a person working for an employer who is not liable to pay statutory neonatal care pay.

Part 3 (regulations 14 to 24) makes further provision in relation to the conditions of entitlement relating to employment and earnings. Regulation 14 provides that certain people are, or are not, to be regarded as “employees” for the purposes of entitlement to statutory neonatal care pay under Part 12ZE of the 1992 Act, regardless of whether or not they would otherwise meet the relevant definition of “employee” in that Act. Regulation 15 requires a person to remain in continuous employment with the employer that is liable to pay statutory neonatal care pay until the period of payment. Regulations 16 to 18 and 20 to 21 make provision for employment to be treated as continuous in particular circumstances, including for example where there is a stoppage of work due to a trade dispute or a person is reinstated following service with the armed forces. Regulation 19 makes special provision for periods of employment between 25 and 26 weeks’ long.

Regulation 22 sets out when two or more employers should be treated as a single employer and when two or more contracts of service with the same employer should be treated as a single contract. Regulation 23 provides the meanings of the terms “earnings” and “relevant period” for the purposes of calculating a person’s normal weekly earnings under Part 12ZE of the 1992 Act.

Regulation 24 applies to early births to modify the conditions of entitlement relating to employment in the period before a child’s expected week of birth, if the child is born before that period.

Part 4 (regulations 25 to 33) makes provision in relation to payment of statutory neonatal care pay. Regulation 25 sets the weekly rate of payment and regulation 26 sets out which types of contractual pay can be set off against statutory neonatal care pay. Regulation 27 deals with where an employer ends a contract of employment in order to avoid liability for statutory neonatal care pay to provide that they remain liable. Regulation 28 allows payments of statutory neonatal care pay to be made in the same way as remuneration but excludes payments in kind or the provision of board and lodging as a form of payment. Regulation 29 sets out when payment must be made by an employer following a decision by an officer of Revenue and Customs or a decision of the relevant tribunal or court. Regulation 30 sets out the circumstances when liability to make payments of statutory neonatal care pay is the liability of the Commissioners for Revenue and Customs, and not the employer. Regulation 31 makes provision for when those payments are to be made. Regulation 32 allows the Commissioners to appoint someone else to act and receive payments on behalf of a person who is entitled to statutory neonatal care pay but is for the time being incapacitated. Regulation 33 provides details of when notices are to be regarded as given.

The Schedule contains provisions modifying the regulations in various cases where the child dies, an adoption placement is disrupted or a parental order does not proceed.

These Regulations are part of a package of legislative measures to implement the Neonatal Care (Leave and Pay) Act 2023. A full impact assessment of the effect that Act will have on the costs of business, the voluntary sector and the public sector was published on 23 January 2023 and is available from the Department for Business and Trade, Old Admiralty Building, London, SW1A 2PA.