Childcare element & benefit cap

A few related questions (all of which illustrate how the system just isn’t set up for current circumstances).

Childcare element. If a nursery is charging for childcare which is never going to be provided, can that still be ‘relevant childcare’ (reg 35 UC Regs). I think not, as the reg is all about ‘care provided’. In addition, how would reg 34A operate where childcare is never actually provided.

I think clients in this situation should be arguing with the nurseries that are charging them anyway & looking at their contracts. Please let me know if you disagree…

If you are off work because the nursery is shut, then I don’t think the new SSP provision applies (the client is not isolating as such). Nor would the job retention scheme apply (client still has work which can be done, not ‘furloughed’, just can’t do it). I think this is unpaid parental leave (whether that is enough for the length of time this could last, who knows), and the relevant benefit has to be UC. This particular client will be benefit capped regardless (as SSP isn’t enough to meet the earnings condition, even were it payable).

NB I think were it not for ‘relevant childcare’ not applying the client could at least be treated as in paid work for the childcare element for the AP in which they stop work & the following AP, despite not having sufficent earnings.

That leads on to a general question re the operation of the benefit cap on people not protected by the grace period but whose earnings fall because they are on SSP/ESA/neither, and have to claim UC in addition or instead of these benefits. Given the status of case law re the benefit cap it might look hopeless, but I think these are entirely different arguments, not about discrimination but about irrationality.

What do people think (I’ve advised to put in an MR anyway to protect the client’s position).

Will

The wording is fairly similar to that used in Reg 14 of the WTC (Entitlement and Maximum Rate) Regs for tax credits. I have always assumed this means, like you say, that the childcare has to actually be ‘provided’. However, HMRC have now circulated guidance to all their agents manning the helpline that as long as the childcare is continued to be paid, they will continue to pay it. I wonder if UC are doing the same?

I’m not so worried about Reg 34A, as it will still be clear which AP the childcare is for despite not actually being provided.

I have to agree with the rest of your post, unfortunately.

Treatment of people who are self-isolating is fairly clear. They are treated as sick and an therefore get SSP or claim new style ESA. However as far as I can tell self-isolation is never more than 14 days (at a time).

We also have vulnerable people advised to socially distance and extremely vulnerable people advised to shield and protect and now people who have to stay home to look after their children. The position of all of these groups in teams of employment rights and benefit entitlement is, to me at least, simply not clear.

Obviously workers who become furloughed workers will be in a good position but I don’t think any of the above groups can be treated as a furloughed worker - unless they have an understanding employer who is willing to designate them as such.

With only headline announcements and public guidance but not full details it is very hard to unpick!

Thanks both.

Charles, I didn’t know the tax credits helpline were saying that re charges for childcare that will never be provided, so it’s useful to know. I’ll suggest the client ask the UC helpline but who knows if there will be any clear & consistent message on this from them.

if anyone is able to find out (Daphne?) that would be great.

I’ll send up an email Will - I’ve sent quite a few and no replies yet other than to say they’re trying to get them answered but can give it a go