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HMRC internal manual

Child Benefit Technical Manual

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HM Revenue & Customs
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Guardian's Allowance: Entitlement - Surviving parent in prison

Guardian’s Allowance (General) Regulations 2003, regulation 7

Guardian’s Allowance is payable when one parent is dead and the other is in prisonor detained in hospital by court order.

Meaning of ‘in prison’

A person is treated as being in prison if they are
 

  • serving a custodial sentence under
  • section 76 of the Powers of Criminal Courts (Sentencing) Act 2000
  • article 2(2) of the Criminal Justice (Northern Ireland) Order 1996

 

or

  • serving a sentence of detention or imprisonment under section 307(1) of the Criminal Procedure (Scotland) Act 1995

 

and

  • they have not less than 2 years of that sentence remaining at the death of the other parent

 

or

  • they are detained in hospital by order of the court under
  • section 37(1), 38 or 45A of the Mental Health Act 1983
  • section 5 of the Criminal Procedure (Insanity) Act 1964
  • section 6 or 14 of the Criminal Appeal Act 1968
  • section 57, 5[57A], or 59A of the Criminal Procedure (Scotland) Act 1995
  • Article 44, 45, 50A or 51(2) & (3) of the Mental Health (Northern Ireland) Order 1986

 

or

  • section 11 or 13(5A) and (6) of the Criminal Appeal (Northern Ireland) Act 1980.

This regulation also applies to parents who are outside GB & NI and serving a custodial sentence with not less than two years remaining from the death of the other parent.

Calculating two years remaining

Disregard
 

  • any part of the sentence served before the death of the deceased parent
  • any reduction made to the length of the sentence to take account of any period spent in custody prior to sentencing

Example

A two year sentence imposed two months after the accused was committed for trial would be treated as a sentence of one year ten months from the date of sentence. However, this reduction is disregarded and the sentence treated as one of two years for Guardian’s Allowance.
 

  • include, in addition to the prison sentence is any period spent in custody immediately prior to sentencing
  • unless this was before the death of the deceased parent

 

or

  • if already serving a sentence (the first sentence) immediately prior to this sentence (the second sentence), include only the part of the first sentence remaining following the second sentence.

The payment of Guardian’s Allowance is not permitted in respect of any period prior to sentencing.

Ceasing to be treated as being in prison

A person ceases to be treated as being in prison when
 

  • they are released on licence
  • the remainder of their sentence is remitted
  • their sentence is reduced on appeal to a term of less than two years
  • their conviction is quashed on appeal or
  • at any time after starting their sentence they are not in prison, and have not been in prison for a period at least equal to the remaining period of their sentence. But where they return to prison to serve the rest of the sentence, the length of the sentence is that remaining at the time of return to prison.

Not treated as ceasing to be in prison

A person is not treated as having ceased to be in prison if they
 

  • are temporarily released
  • unlawfully at large
  • are transferred from prison to hospital.