Hi there,

I have a query relating to the provisions for a person to be treated as being engaged in qualifying remunerative work while they are on maternity leave or in a period of limited capability for work (for up to 28 weeks). The query is whether it would be possible to combine two periods of being treated as engaged in qualifying remunerative work. My inclination is that it is not possible, because you must have been engaged in qualifying work immediately before the beginning of the period. However it does not seem clear what the answer is from the regulations (WTC Entitlement and Maximum Rate Regulations 2002 Reg 5-6) so I thought I would see if anyone has any interpretations or experience of this.

This relates to two clients for me:

- One client is currently receiving maternity allowance, she was working for 30 hours before the maternity period began and has a partner working 16 hours. She has since developed health problems and has made a claim for DLA and is considering whether to return to work after the end of her maternity period or to make a claim for ESA. Assuming she successfully claims DLA, the family could continue to qualify for WTC because the partner is working, and also for the childcare element as she is “incapacitated.” But if she could combine the 52 week period of maternity leave with the first 28 week period of limited capability for work, she could continue to be treated as working so the family could continue to get the 30 hour element (and the disabled worker elements if she is successful in her DLA claim).

- One client is on maternity leave and still under a contract of employment, and due to return to work in March 2010, but is her second child is due in April 2010 so she is hoping to take another period of maternity leave immediately. The question is whether she can continue to be treated as in qualifying work for the second period of maternity leave.

Many thanks,

Josh

In relation to the first scenario (maternity then illness) a similar question was asked in Oct 2008 via the tax credit consultation group. I posted the answer on Rightsnet Inside Track which is here: http://www.rightsnet.org.uk/toolkit_113-9108-30234.html (scroll down to 20th October 2008)

The answer would appear to be that you can combine the two periods, as the 39 week maternity period seems to class as being in qualifying remunerative work immediately before the period of illness.

However, you mention a 52 week period of maternity leave, but my understanding of the regulations is that she is only in qualifying remunerative work for the first 39 weeks (and not the remaining 13 weeks). Therefore for those 13 weeks she wouldn't be in remunerative work, which then means she wouldn't meet the criteria during the 28 week period of limited capability for work.

It would seem to me that it would only work if you had 39 weeks maternity leave then started the 28 weeks period immediately.

Victoria

Thank you for your very helpful answer.

I assumed from the regulations that you would be able to continue to be treated as working during 39 weeks of ordinary maternity leave plus 13 weeks of additional maternity leave (on the basis that people have entitlement to 52 weeks of maternity leave but only 39 weeks paid). And therefore that this would also apply to people receiving maternity allowance. Is this wrong?

Thanks,

Josh

I believe Ordinary Maternity Leave is only 26 weeks, the first 13 weeks of additional maternity leave therefore make a total of 39. So SMP goes across OML and AML.

See here on HMRC website:

http://www.hmrc.gov.uk/taxcredits/keep-up-to-date/changes-affect/family-change/maternity-adoption.htm

and

http://www.hmrc.gov.uk/manuals/spmmanual/SPM20125.htm

Victoria

Thanks for clarifying that!

Josh

Regarding the second client, I presume she cannot get WTC:

- She began maternity leave in March 2009 and claimed WTC for 39 weeks until December 2009
- She is now on unpaid additional maternity leave, no longer getting WTC, and pregnant with a second child due in April 2010
- She is starting a second period of paid maternity leave for 39 weeks from March 2010

My understanding is that when the ordinary maternity leave starts in March 2010, she cannot claim WTC because she was not working 16 hours immediately before the period of OML started.

Any alternative interpretations of this?

Thanks,
Josh

I think I agree with your interpretation, the 13 weeks additional maternity leave from the 1st pregnancy breaks the cycle, so when she starts OML for the 2nd pregnancy she no longer fulfils the condition because she wasn't in QMR immediately before the period of OML.

Victoria