Part 4PAYMENT OF STATUTORY NEONATAL CARE PAY

Weekly rate of payment

25.—(1) The weekly rate of payment of statutory neonatal care pay is the smaller of the following two amounts—

(a)£187.18;

(b)90% of the normal weekly earnings of the person claiming statutory neonatal care pay determined in accordance with section 171ZZ24(6) of the Act and regulation 23.

(2) Where the amount of any payment of statutory neonatal care pay is calculated by reference to—

(a)the weekly rate specified in paragraph (1)(b), or

(b)the daily rate of one-seventh of the weekly rate specified in paragraph (1)(a) or (b),

and that amount includes a fraction of a penny, the payment must be rounded up to the nearest whole number of pence.

Statutory neonatal care pay and contractual remuneration

26.  For the purposes of section 171ZZ21(1) and (2) of the 1992 Act (relationship with contractual remuneration), the payments which are to be treated as contractual remuneration are sums payable under a contract of service—

(a)by way of remuneration,

(b)for incapacity for work due to sickness or injury, or

(c)by reason of the birth, adoption, care or death of a child.

Avoidance of liability for statutory neonatal care pay

27.—(1) A former employer is liable to make payments of statutory neonatal care pay to a former employee in any case where the employee had been employed for a continuous period of at least 8 weeks and the employee’s contract of service was brought to an end by the former employer solely, or mainly, for the purpose of avoiding liability for statutory neonatal care pay.

(2) In a case falling within paragraph (1)—

(a)the employee must be treated as if the employee had been employed for a continuous period ending with the relevant week, and

(b)regulation 23 (4) (relevant period for the purpose of the calculation of normal weekly earnings) applies as if it read—

“(4) The relevant period is the period—

(a)ending on the last day of payment under the former contract of employment, and

(b)beginning with the day following the day of payment under that contract to fall at least 8 weeks earlier than the day of payment mentioned in sub-paragraph (a).”.

Payment of statutory neonatal care pay

28.  Payments of statutory neonatal care pay may be made in a like manner to payments of remuneration but must not include payment in kind or by way of provision of board or lodgings.

Payment following a decision by an officer of Revenue and Customs

29.—(1) In any case where—

(a)a decision has been made by an officer of Revenue and Customs under section 8(1) (decisions by officers) of the Social Security Contributions (Transfer of Functions, etc.) Act 1999(1) or by an appellate authority, as a result of which a person is entitled to an amount of statutory neonatal care pay, and

(b)the time for bringing an appeal against the decision has expired and either—

(i)no such appeal has been brought,

(ii)leave to appeal against the decision has been refused and there remains no further opportunity to apply for leave, or

(iii)such appeal has been brought and has been withdrawn or has otherwise been finally disposed of,

that amount of statutory neonatal care pay must be paid by the employer within the time specified in paragraph (2).

(2) Subject to paragraphs (3) and (4), payment must be made no later than the first pay day after the following days—

(a)where an appeal has been brought, the day on which the employer receives notification that it has been withdrawn or otherwise ceases to have effect,

(b)where leave to appeal has been refused, the day on which the employer receives notification of the refusal or the day on which the time to make a further application for leave expires, whichever is later, and

(c)in any other case, the day on which the time for bringing an appeal expires.

(3) Subject to paragraph (4), where it is impracticable, in view of the employer’s methods of accounting for and paying remuneration, to pay the amount by the pay day referred to in paragraph (2), the payment must be made by the employer no later than the next following pay day.

(4) Where the employer would not have remunerated the employee for their work in the week in respect of which statutory neonatal care pay is payable as early as the pay day specified in paragraph (2), or, if it applies, paragraph (3), the payment must be made by the employer on the first day on which the employee would have been remunerated for work in that week.

(5) In this regulation—

“appellate authority” means the First-Tier Tribunal, the Upper Tribunal, the Court of Appeal, the Court of Session, or the Supreme Court.

“pay day” means a day on which it has been agreed, or it is normal practice between an employer and their employee, that payments of remuneration are to be made, or, where there is no such agreement or normal practice, the last day of a calendar month.

Liability of the Commissioners to pay statutory neonatal care pay

30.—(1) Despite section 171ZZ18(1) of the 1992 Act (liability to make payments of statutory neonatal care pay is liability of the employer), liability to make payment of statutory neonatal care pay to a person is a liability of the Commissioners and not the employer in the circumstances specified in this regulation.

(2) In the case referred to in regulation 29(1), the Commissioners are liable to make payments of statutory neonatal care pay to a person for—

(a)any week in respect of which the employer was liable to pay statutory neonatal care pay to that person but did not do so, and

(b)for any subsequent week that person is entitled to payments of statutory neonatal care pay.

(3) Where the person entitled to statutory neonatal care pay has been detained in legal custody or sentenced to a term of imprisonment, the Commissioners are liable to make payments of statutory neonatal care pay—

(a)in respect of a period which is subsequent to a period mentioned in regulation 12(1)(c) (cases where there is no liability to pay statutory neonatal care pay), and

(b)during a period of detention in legal custody where there is liability to make payments by virtue of regulation 12(2).

(4) Where the employer becomes insolvent, the Commissioners are liable to make payments of statutory neonatal care pay to a person from the week in which the employer first becomes insolvent until the last week that person is entitled to payment of statutory neonatal care pay.

(5) For the purposes of paragraph (4) an employer must be taken to be insolvent if, and only if, in England and Wales—

(a)the employer has been adjudged bankrupt or has made a composition or arrangement with its creditors,

(b)the employer has died and the employer’s estate falls to be administered in accordance with an order made under section 421 of the Insolvency Act 1986(2), or

(c)where an employer is a company or a limited liability partnership—

(i)a winding-up order is made or a resolution for a voluntary winding-up is passed (or, in the case of a limited liability partnership, a determination for voluntary winding-up has been made) with respect to it,

(ii)it enters administration,

(iii)a receiver or manager of its undertaking is duly appointed,

(iv)a possession is taken, by or on behalf of the holders of any debentures secured by a floating charge, of any property of the company or limited liability partnership comprised in or subject to the charge, or

(v)a voluntary arrangement proposed for the purposes of Part 1 of the Insolvency Act 1986 is approved under that Part.

(6) For the purposes of paragraph (4) an employer must be taken to be insolvent if and only if, in Scotland—

(a)an award of sequestration is made on the employer’s estate,

(b)the employer executes a trust deed for its creditors,

(c)the employer enters into a composition contract,

(d)the employer has died and a judicial factor appointed under section 11A of the Judicial Factors (Scotland) Act 1889(3) is required by that section to divide the employer’s insolvent estate among the employer’s creditors, or

(e)where the employer is a company or limited liability partnership—

(i)a winding-up order is made or a resolution for a voluntary winding-up is passed (or in the case of a limited liability partnership, a determination for a voluntary winding-up is made) with respect to it,

(ii)it enters administration,

(iii)a receiver of its undertaking is duly appointed, or

(iv)a voluntary arrangement proposed for the purposes of Part 1 of the Insolvency Act 1986 is approved under that Part.

Payments by the Commissioners

31.  Where the Commissioners become liable in accordance with regulation 30 (liability of the Commissioners to pay statutory neonatal care pay) then payment is to be made as soon as reasonably practicable after they become so liable, by means of an instrument of payment or by such other means as appears to the Commissioners to be appropriate in the circumstances of any particular case.

Persons unable to act

32.—(1) This regulation applies where—

(a)statutory neonatal care pay is payable to a person or it is alleged that statutory neonatal care pay is payable to a person,

(b)that person is unable for the time being to act,

(c)no deputy has been appointed by the Court of Protection with power to receive statutory neonatal care pay on their behalf or, in Scotland, their estate is not being administered by a guardian acting or appointed under the Adults with Incapacity (Scotland) Act 2000(4), and

(d)a written application has been made to the Commissioners by a person, who, if a natural person, is over the age of 18, to exercise any right or deal with any sums payable under Part 12ZE of the 1992 Act, on behalf of the person unable to act.

(2) Where this regulation applies the Commissioners may appoint the person referred to in paragraph (1)(d)—

(a)to exercise, on behalf of the person unable to act, any right to which the person unable to act may be entitled under Part 12ZE of the 1992 Act, and

(b)to deal, on behalf of the person unable to act, with any sums payable to the person unable to act under Part 12ZE of the 1992 Act.

(3) Where the Commissioners have made an appointment under paragraph (2)—

(a)they may at any time revoke it,

(b)the person appointed may resign their office after having given one month’s notice in writing to the Commissioners of that person’s intention to do so, and

(c)the appointment ends when the Commissioners are notified that a deputy or other person to whom paragraph (1)(c) refers has been appointed.

(4) Anything required by Part 12ZE of the 1992 Act to be done by or to the person who is unable to act may be done by or to the person appointed under this regulation to act on behalf of the person unable to act and the receipt of the person so appointed of any sum paid under that Part is a good discharge to the employer of the person unable to act for any such sum paid.

Service of notices

33.—(1) Where a notice is to be given under these Regulations, it may be given by—

(a)electronic means,

(b)prepaid post in an envelope which is properly addressed, or

(c)personal delivery.

(2) Where a notice under these Regulations is given in accordance with paragraph (1), it is to be taken to have been given—

(a)if sent by electronic means, on the day of transmission;

(b)if sent by prepaid post, on the day in which it is posted;

(c)if delivered personally, on the day of delivery.