Part 2ENTITLEMENT
Conditions of entitlement relating to parental or other personal relationship
5.—(1) The conditions prescribed for the purposes of section 171ZZ16(2)(a)(i) of the 1992 Act (as to parental or personal relationship with a child receiving neonatal care) are the conditions in paragraph (2) or (3).
(2) A person satisfies the conditions of this paragraph if—
(a)the person is—
(i)C’s parent,
(ii)the partner of C’s mother, or
(iii)an intended parent of C, and
(b)at the time of C’s birth, the person has or expects to have—
(i)if the person is the parent or intended parent of C, responsibility for the upbringing of C;
(ii)if the person is the partner of C’s mother, the main responsibility (apart from any responsibility of their partner) for the upbringing of C.
(3) A person satisfies the conditions of this paragraph if the person is—
(a)C’s adopter,
(b)C’s overseas adopter,
(c)C’s prospective adopter,
(d)the partner of C’s adopter or prospective adopter and at the time C is placed with the adopter or prospective adopter, the person has or expects to have the main responsibility (apart from any responsibility of their partner) for the upbringing of C, or
(e)the partner of C’s overseas adopter and at the time of C’s entry into Great Britain, the person has or expects to have the main responsibility (apart from any responsibility of their partner) for the upbringing of C.
(4) In this regulation and in regulation 6 and the Schedule—
“adopter” means a person the child has been placed with for adoption in accordance with the Adoption and Children Act 2002(1) or the Adoption and Children (Scotland) Act 2007(2);
“intended parent” means a person who on the day of the child’s birth—
has applied or intends to apply during the period of 6 months beginning with the day of the child’s birth—
expects the court to make such an order on that application in respect of the child;
“official notification” means written notification, issued by or on behalf of the relevant domestic authority, that it is prepared to issue a certification to the overseas authority concerned with the adoption of the child, or has issued a certificate and sent it to that authority, confirming in either case that the overseas adopter is eligible to adopt and has been assessed and approved as being a suitable adoptive parent;
“overseas adopter” means a person—
with whom the child is living, following the child’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 the child for adoption under the law of any part of the United Kingdom, and
who has received official notification in respect of the child;
“P” means the child’s mother or a person who is an adopter, prospective adopter or overseas adopter;
“partner” means a person (whether of a different sex or the same sex) who lives with P in an enduring family relationship but is not a relative of P of a kind specified in paragraph (5);
“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(5) or regulation 30B(4) of the Adoption Agencies (Wales) Regulations 2005(6), and
with whom the child has been placed, either—
in accordance with section 22C of the Children Act 1989(7) (ways in which looked after children are to be accommodated and maintained), following consideration in accordance with subsection (9B)(c) of that section, or
in accordance with section 81 of the Social Services and Well-being (Wales) Act 2014(8);
“relevant domestic authority” means—
in the case of an overseas adopter to whom Part 3 of the Adoptions with a Foreign Element Regulations 2005(9) apply and who is habitually resident in Wales, the Welsh Ministers,
in the case of an overseas adopter to whom the Adoptions with a Foreign Element (Scotland) Regulations 2009(10) apply and who is habitually resident in Scotland, the Scottish Ministers, and
in any other case, the Secretary of State;
(5) The relatives of P referred to in the definition of “partner” in paragraph (4) are P’s parent, grandparent, grandchild, sibling, aunt, uncle, niece or nephew.
(6) References to the relatives of P in paragraph (5)—
(a)are references to relationships of the full blood or half blood,
(b)in the case of an adopted person, include such of those relationships as would exist but for the adoption, and
(c)include the relationship of a child with their adoptive, or former adoptive, parents but do not include any other adoptive relationships.
Entitlement to statutory neonatal care pay in special circumstances
6.—(1) Paragraph 1 of the Schedule applies to an employee who is C’s parent or the partner of C’s mother where C dies before the end of the qualifying period.
(2) Paragraph 2 of the Schedule applies to an employee who is C’s adopter, prospective adopter or the partner of C’s adopter or prospective adopter where, before the end of the qualifying period,—
(a)C dies; or
(b)C is returned after having been placed for adoption.
(3) Paragraph 3 of the Schedule applies to an employee who is C’s overseas adopter or their partner where, before the end of the qualifying period,—
(a)C dies; or
(b)ceases to live with the overseas adopter.
(4) Paragraph 4 of the Schedule applies to an employee who is the intended parent of C where, before the end of the qualifying period, C dies, or the parental order does not proceed because—
(a)the intended parent does not apply for a parental order for C within the time limit in section 54(3) or section 54A(2) of the Human Fertilisation and Embryology Act 2008 for making such an application; or
(b)the application is refused, withdrawn or otherwise terminated without the order being granted and any time limit for an appeal or new application has expired.
(5) Paragraph 6 of the Schedule applies to an employee who is C’s parent or the partner of C’s mother where the parental order does not proceed because—
(a)the intended parent does not apply for a parental order for C within the time limit in section 54(3) or section 54A(2) of the Human Fertilisation and Embryology Act 2008(11) for making such an application; or
(b)the application is refused, withdrawn or otherwise terminated without the order being granted and any time limit for an appeal or new application has expired.
Number of weeks pay
7.—(1) Subject to paragraph (3), the period in respect of which a person is entitled to statutory neonatal care pay is one week for every period of 7 days that C is in receipt of neonatal care without interruption.
(2) The maximum number of weeks in respect of which a person is entitled to payments of statutory neonatal care pay is 12 weeks.
(3) In a case where a person only meets the conditions in regulation 5(3) after C has already been in receipt of neonatal care, the period in respect of which that person is entitled to statutory neonatal care pay is one week for every period of 7 days that C is in receipt of neonatal care without interruption after the person met those conditions.
(4) Entitlement to statutory neonatal care pay may be accrued in respect of two or more separate occasions that C receives neonatal care if on each occasion C is in receipt of neonatal care for at least 7 days without interruption.
(5) For the purposes of this regulation and in relation to each separate occasion that C receives neonatal care, the first period of 7 days begins with the day after the day on which the neonatal care starts.
More than one child in receipt of neonatal care
8. In a case where a person meets the conditions in regulation 5 in respect of more than one child born as a result of the same pregnancy—
(a)for the definition of “Tier 1 period” in regulation 3 (interpretation) there is substituted—
““Tier 1 period” means the period beginning with the first day that one or more of the children born as a result of the pregnancy starts receiving neonatal care and ending with the 7th day after the day that the last of the children to receive neonatal care stops receiving it;”;
(b)the references to C being in receipt of neonatal care in regulation 7 are references to the same child being in receipt of neonatal care for a period of 7 days without interruption;
(c)subject to paragraph (d), entitlement to statutory neonatal care pay may be accrued in respect of more than one child;
(d)for any period where more than one child is in receipt of neonatal care at the same time, entitlement can only be accrued in that period in respect of one child;
(e)the maximum number of weeks in respect of which the person is entitled to payments of statutory neonatal care pay remains unchanged where more than one child is receiving neonatal care.
Options in respect of payment of statutory neonatal care pay
9.—(1) A person may choose for statutory neonatal care pay to be paid for a week only if that person cared for or intends to care for C during that week.
(2) A person may choose for statutory neonatal care pay to be paid—
(a)in a tier 1 period for a single week or for a number of weeks, whether or not consecutively, or
(b)in a tier 2 period for a single week or for a consecutive period of weeks.
Qualifying period
10.—(1) Subject to paragraph (2), the qualifying period for the purposes of section 171ZZ19(2) of the 1992 Act (period within which statutory neonatal care pay is payable) is a period of 68 weeks beginning with the date of C’s birth.
(2) Where a person meets the conditions in regulation 5 in respect of more than one child born as a result of the same pregnancy, the qualifying period for the purposes of section 171ZZ19(2) of the 1992 Act is a period of 68 weeks beginning with the date of birth of the first child born as a result of the pregnancy.
Notice and evidence requirements for statutory neonatal care pay
11.—(1) The notice provided for in section 171ZZ17(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 neonatal care pay—
(a)where the notice relates to a statutory pay week that begins in the Tier 1 period, in accordance with paragraph (2);
(b)where the notice relates to a statutory pay week that begins in the Tier 2 period, in accordance with paragraph (3) or (4);
(c)in a case where it is not reasonably practicable for the person to give the notice in accordance with paragraphs (2) to (4), as soon as reasonably practicable.
(2) For statutory pay weeks beginning in the Tier 1 period, notice must be given before the end of the period of 28 days beginning with the first day of the first statutory pay week to which the notice relates.
(3) For a single statutory pay week beginning in the Tier 2 period, notice must be given no later than 15 days before the first day of the statutory pay week to which the notice relates.
(4) For two or more consecutive statutory pay weeks beginning in the Tier 2 period, notice must be given no later than 28 days before the first day of the first statutory pay week to which the notice relates.
(5) The following evidence of entitlement to statutory neonatal care pay must be provided in writing when notice is given under paragraph (1)—
(a)the name of the person claiming statutory neonatal care pay;
(b)the date of C’s birth;
(c)where evidence is provided by a person satisfying the conditions in regulation 5(3)—
(i)the date of C’s placement with C’s adopter or prospective adopter, or
(ii)the date of C’s entry into Great Britain to live with C’s overseas adopter;
(d)the date that C started to receive neonatal care or each such date if C has received neonatal care on two or more separate occasions;
(e)if C is no longer receiving neonatal care, the date the neonatal care ended;
(f)a declaration that the person has cared or intends to care for C during the statutory pay weeks to which the notice under paragraph (1) relates;
(g)if it is the first time notice is given under paragraph (1) in respect of C, a declaration that the person claiming the statutory neonatal care pay meets the conditions prescribed in regulation 5(2) or (3).
(6) Where a person has given notice under paragraph (1) before C has stopped receiving neonatal care, the person must inform the person liable to pay statutory neonatal care pay of the date that the neonatal care ends, as soon as is reasonably practicable after that date.
(7) Where a person has given notice under paragraph (1) relating to a statutory pay week that begins in the Tier 2 period (“the original notice”), the person may withdraw the original notice by giving notice of withdrawal in writing to the person who will be liable to pay statutory neonatal care pay in accordance with paragraph (8) or (9).
(8) Where the original notice was given in relation to a single statutory pay week beginning in the Tier 2 period, a notice of withdrawal must be given no later than 15 days before the first day of the week to which the original notice relates.
(9) Where the original notice was given in relation to two or more consecutive statutory pay weeks beginning in the Tier 2 period, a notice of withdrawal must be given no later than 28 days before the first day of the first statutory pay week to which the original notice relates.
(10) Notwithstanding the provisions in paragraphs (1) to (9) of this regulation, section 171ZZ17(1) of the 1992 Act does not have effect where paragraph (11) applies.
(11) The employee and employer can mutually agree to waive the requirement to give notice and the employee will be treated as having given notice in accordance with this regulation.
Cases where there is no liability to pay statutory neonatal care pay
12.—(1) There is no liability to pay statutory neonatal care 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—
(i)detained in legal custody, unless one of the circumstances in paragraph (2) applies, or
(ii)sentenced to a term of imprisonment and the sentence is not suspended.
(2) There is liability to pay statutory neonatal care 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 is—
(a)subsequently released without charge,
(b)subsequently found not guilty of any offence and is released, or
(c)convicted of an offence but does not receive a custodial sentence.
Work during period of payment of statutory neonatal care pay
13.—(1) Despite section 171ZZ19(8) of the 1992 Act (statutory neonatal care 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 neonatal care pay), statutory neonatal care 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 neonatal care pay, and
(b)for whom the person has worked in the relevant week.
(2) Where a person works for an employer falling within paragraph (1)(a) but not paragraph (1)(b) for any part of a week or weeks specified by that person in a notice under regulation 11(1), the person must notify the employer liable to pay neonatal care pay of the fact of that work within 7 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 neonatal care pay so requests.
2008 c. 22. Section 54 was amended by paragraph 206 of Schedule 11 to the Crime and Courts Act 2013 (c. 22); part 1 of Schedule 9 to the Justice Act (Northern Ireland) 2015 (c. 9) and S.I. 2018/1413.
Section 54A was inserted by S.I. 2018/1413.
S.I. 2005/389; regulation 30B was inserted by S.I. 2013/985.
S.I. 2005/1313 (W. 95); regulation 30B was inserted by S.I. 2020/163.
1989 c. 41. Section 22C was inserted by section 8 of the Children and Young Persons Act 2008 (c. 23) and amended by section 2, and paragraph 29 of Schedule 2, to the Children and Families Act 2014 (c. 6), S.I. 2016/413 (W. 131) and S.I. 2018/195 (W. 44).
2014 anaw. 4. Section 81 was amended by S.I. 2017/1025 (W. 263).
S.I. 2005/392, to which there are amendments not relevant to these Regulations.
S.S.I. 2009/182, to which there are amendments not relevant to these Regulations.
2008 c. 22. Section 54A was amended by paragraph 206 of Schedule 11 to the Crime and Courts Act 2013 (c. 22), paragraph 1 of Schedule 9 to the Justice Act (Northern Ireland) 2015 (c. 9), and S.I. 2018/1413. Section 54A was inserted 6B. by S.I. 2018/1413.