Children and Families Bill (HC Bill 5)

circumstances in which, notwithstanding this section, liability to make
payments of statutory shared parental pay is to be a liability of the
Commissioners.

171ZY Rate and period of pay

(1) 5Statutory shared parental pay is payable at such fixed or earnings-
related weekly rate as may be prescribed by regulations, which may
prescribe different kinds of rate for different cases.

(2) Subject to the following provisions of this section, statutory shared
parental pay is payable to a person in respect of each week falling
10within a relevant period, up to the number of weeks determined in the
case of that person in accordance with regulations under section
171ZU(5) or 171ZV(5).

(3) Except in such cases as may be prescribed, statutory shared parental
pay is not payable to a person in respect of a week falling within a
15relevant period if it is not the person’s intention at the beginning of the
week to care for the child by reference to whom the person satisfies—

(a) the condition in section 171ZU(2)(a) or (4)(a), or

(b) the condition in section 171ZV(2)(a) or (4)(a).

(4) Except in such cases as may be prescribed, statutory shared parental
20pay is not payable to a person in respect of a week falling within a
relevant period during any part of which week the person works for
any employer.

(5) The Secretary of State may by regulations specify circumstances in
which there is to be no liability to pay statutory shared parental pay in
25respect of a week falling within a relevant period.

(6) Where for any purpose of this Part or of regulations it is necessary to
calculate the daily rate of statutory shared parental pay, the amount
payable by way of statutory shared parental pay for any day shall be
taken as one seventh of the weekly rate.

(7) 30For the purposes of this section a week falls within a relevant period if
it falls within a period specified in a notice under—

(a) section 171ZU(2)(j), (4)(k) or (13)(a), or

(b) section 171ZV(2)(j), (4)(k) or (13)(a),

and is not afterwards excluded from such a period by a variation of the
35period or periods during which the person in question intends to claim
statutory shared parental pay.

(8) In this section “week”, in relation to a relevant period, means a period
of seven days beginning with the day of the week on which the relevant
period starts.

171ZZ 40 Restrictions on contracting out

(1) An agreement is void to the extent that it purports—

(a) to exclude, limit or otherwise modify any provision of this Part,
or

(b) to require a person to contribute (whether directly or indirectly)
45towards any costs incurred by that person’s employer or former
employer under this Part.

(2) For the avoidance of doubt, an agreement between an employer and an
employee, authorising deductions from statutory shared parental pay
which the employer is liable to pay to the employee in respect of any
period, is not void by virtue of subsection (1)(a) if the employer—

(a) 5is authorised by that or another agreement to make the same
deductions from any contractual remuneration which the
employer is liable to pay in respect of the same period, or

(b) would be so authorised if the employer were liable to pay
contractual remuneration in respect of that period.

171ZZ1 10 Relationship with contractual remuneration

(1) Subject to subsections (2) and (3), any entitlement to statutory shared
parental pay is not to affect any right of a person in relation to
remuneration under any contract of service (“contractual
remuneration”).

(2) 15Subject to subsection (3)—

(a) any contractual remuneration paid to a person by an employer
of that person in respect of any period is to go towards
discharging any liability of that employer to pay statutory
shared parental pay to that person in respect of that period; and

(b) 20any statutory shared parental pay paid by an employer to a
person who is an employee of that employer in respect of any
period is to go towards discharging any liability of that
employer to pay contractual remuneration to that person in
respect of that period.

(3) 25Regulations may make provision as to payments which are, and those
which are not, to be treated as contractual remuneration for the
purposes of subsections (1) and (2).

171ZZ2 Crown employment

The provisions of this Part apply in relation to persons employed by or
30under the Crown as they apply in relation to persons employed
otherwise than by or under the Crown.

171ZZ3 Special classes of person

(1) The Secretary of State may with the concurrence of the Treasury make
regulations modifying any provision of this Part in such manner as the
35Secretary of State thinks proper in its application to any person who is,
has been or is to be—

(a) employed on board any ship, vessel, hovercraft or aircraft;

(b) outside Great Britain at any prescribed time or in any
prescribed circumstances; or

(c) 40in prescribed employment in connection with continental shelf
operations, as defined in section 120(2).

(2) Regulations under subsection (1) may, in particular, provide—

(a) for any provision of this Part to apply to any such person,
notwithstanding that it would not otherwise apply;

(b) 45for any such provision not to apply to any such person,
notwithstanding that it would otherwise apply;

(c) for excepting any such person from the application of any such
provision where the person neither is domiciled nor has a place
of residence in any part of Great Britain;

(d) for the taking of evidence, for the purposes of the determination
5of any question arising under any such provision, in a country
or territory outside Great Britain, by a British consular official or
such other person as may be determined in accordance with the
regulations.

171ZZ4 Part 12ZC: supplementary

(1) 10In this Part—

• “adoption pay period” has the meaning given in section 171ZN(2);

• “employer”, in relation to a person who is an employee, means a
  person who—

  (a)

  under section 6 is liable to pay secondary Class 1
  15contributions in relation to any of the earnings of the
  person who is an employee, or

  (b)

  would be liable to pay such contributions but for—

  (i)

  the condition in section 6(1)(b), or

  (ii)

  the employee being under the age of 16;

• 20“local authority” has the same meaning as in the Children Act 1989
  (see section 105(1) of that Act);

• “local authority foster parent” has the same meaning as in the
  Children Act 1989 (see section 22C(12) of that Act);

• “maternity allowance period” has the meaning given in section
  2535(2);

• “maternity pay period” has the meaning given in section 165(1);

• “modifications” includes additions, omissions and amendments,
  and related expressions are to be read accordingly;

• “prescribed” means prescribed by regulations.

(2) 30In this Part “employee” means a person who is gainfully employed in
Great Britain either under a contract of service or in an office (including
elective office) with general earnings (as defined by section 7 of the
Income Tax (Earnings and Pensions) Act 2003).

(3) Regulations may provide—

(a) 35for cases where a person who falls within the definition in
subsection (2) is not to be treated as an employee for the
purposes of this Part, and

(b) for cases where a person who would not otherwise be an
employee for the purposes of this Part is to be treated as an
40employee for those purposes.

(4) Without prejudice to any other power to make regulations under this
Part, regulations may specify cases in which, for the purposes of this
Part or of such provisions of this Part as may be prescribed—

(a) two or more employers are to be treated as one;

(b) 45two or more contracts of service in respect of which the same
person is an employee are to be treated as one.

(5) In this Part, except where otherwise provided, “week” means a period
of seven days beginning with Sunday or such other period as may be
prescribed in relation to any particular case or class of cases.

(6) For the purposes of this Part, a person’s normal weekly earnings are,
5subject to subsection (8), to be taken to be the average weekly earnings
which in the relevant period have been paid to the person or paid for
the person’s benefit under the contract of service with the employer in
question.

(7) For the purposes of subsection (6) “earnings” and “relevant period”
10have the meanings given to them by regulations.

(8) In such cases as may be prescribed, a person’s normal weekly earnings
are to be calculated in accordance with regulations.

(9) Where—

(a) in consequence of the establishment of one or more National
15Health Service trusts under the National Health Service Act
2006, the National Health Service (Wales) Act 2006 or the
National Health Service (Scotland) Act 1978, a person’s contract
of employment is treated by a scheme under any of those Acts
as divided so as to constitute two or more contracts, or

(b) 20an order under paragraph 26(1) of Schedule 3 to the National
Health Service Act 2006 provides that a person’s contract of
employment is so divided,

regulations may make provision enabling the person to elect for all of
those contracts to be treated as one contract for the purposes of this Part
25or such provisions of this Part as may be prescribed.

(10) Regulations under subsection (9) may prescribe—

(a) the conditions that must be satisfied if a person is to be entitled
to make such an election;

(b) the manner in which, and the time within which, such an
30election is to be made;

(c) the persons to whom, and the manner in which, notice of such
an election is to be given;

(d) the information which a person who makes such an election is
to provide, and the persons to whom, and the time within
35which, the person is to provide it;

(e) the time for which such an election is to have effect;

(f) which one of the person’s employers under two or more
contracts is to be regarded for the purposes of statutory shared
parental pay as the person’s employer under the contract.

(11) 40The powers under subsections (9) and (10) are without prejudice to any
other power to make regulations under this Part.

(12) Regulations under any of subsections (4) to (10) must be made with the
concurrence of the Commissioners for Her Majesty’s Revenue and
Customs.

171ZZ5 45 Power to apply Part 12ZC

(1) The Secretary of State may by regulations provide for this Part to have
effect in relation to cases which involve adoption, but not the placement

of a child for adoption under the law of any part of the United
Kingdom, with such modifications as the regulations may prescribe.

(2) The Secretary of State may by regulations provide for this Part to have
effect in relation to cases which involve a person who has applied, or
5intends to apply, with another person for a parental order under
section 54 of the Human Fertilisation and Embryology Act 2008 and a
child who is, or will be, the subject of the order, with such modifications
as the regulations may prescribe.

(3) Where section 171ZW(1)(b) has effect in relation to such cases as are
10described in subsection (2), regulations under section 171ZW(1)(b) may
impose requirements to make statutory declarations as to—

(a) eligibility to apply for a parental order;

(b) intention to apply for such an order.”

(2) In section 176 of the Social Security Contributions and Benefits Act 1992
15(Parliamentary control of subordinate legislation), in subsection (1)
(affirmative procedure), in paragraph (a), at the appropriate place there is
inserted—

• “any of sections 171ZU to 171ZY;”.

90 Exclusion or curtailment of other statutory rights to pay

(1) 20The Social Security Contributions and Benefits Act 1992 is amended as follows.

(2) In section 35 (entitlement to maternity allowance), after subsection (3) there is
inserted—

“(3A) Regulations may provide for the duration of the maternity allowance
period as it applies to a woman to be reduced, subject to prescribed
25restrictions and conditions.

(3B) Regulations under subsection (3A) are to secure that the reduced
period ends at a time—

(a) after a prescribed period beginning with the day on which the
woman is confined, and

(b) 30when at least a prescribed part of the maternity allowance
period remains unexpired.

(3C) Regulations under subsection (3A) may, in particular, prescribe
restrictions and conditions relating to—

(a) the end of the woman’s entitlement to maternity leave;

(b) 35the doing of work by the woman;

(c) the taking of prescribed steps by the woman or another person
as regards leave under section 75E of the Employment Rights
Act 1996 in respect of the child;

(d) the taking of prescribed steps by a person other than the woman
40as regards statutory shared parental pay in respect of the child.”

(3) In section 35, after subsection (3C) (inserted by subsection (2)) there is
inserted—

“(3D) A woman who would, but for the reduction in duration of a maternity
pay period by virtue of section 165(3A), be entitled to statutory

maternity pay for a week is not entitled to a maternity allowance for
that week.”

(4) In section 165 (the maternity pay period), after subsection (3) there is
inserted—

“(3A) 5Regulations may provide for the duration of the maternity pay period
as it applies to a woman to be reduced, subject to prescribed restrictions
and conditions.

(3B) Regulations under subsection (3A) are to secure that the reduced
period ends at a time—

(a) 10after a prescribed period beginning with the day on which the
woman is confined, and

(b) when at least a prescribed part of the maternity pay period
remains unexpired.

(3C) Regulations under subsection (3A) may, in particular, prescribe
15restrictions and conditions relating to—

(a) the end of the woman’s entitlement to maternity leave;

(b) the doing of work by the woman;

(c) the taking of prescribed steps by the woman or another person
as regards leave under section 75E of the Employment Rights
20Act 1996 in respect of the child;

(d) the taking of prescribed steps by the woman or another person
as regards statutory shared parental pay in respect of the child.”

(5) In section 171ZE (rate and period of statutory paternity pay), after subsection
(3) there is inserted—

“(3A) 25Statutory paternity pay is not payable to a person in respect of a
statutory pay week if—

(a) statutory shared parental pay is payable to that person in
respect of any part of that week or that person takes shared
parental leave in any part of that week, or

(b) 30statutory shared parental pay was payable to that person or that
person has taken shared parental leave in respect of the child
before that week.”

(6) In section 171ZN (rate and period of statutory adoption pay), after subsection
(2) there is inserted—

“(2A) 35Regulations may provide for the duration of the adoption pay period
as it applies to a person (“A”) to be reduced, subject to prescribed
restrictions and conditions.

(2B) Regulations under subsection (2A) are to secure that the reduced
period ends at a time—

(a) 40after a prescribed part of the adoption pay period has expired,
and

(b) when at least a prescribed part of the adoption pay period
remains unexpired.

(2C) Regulations under subsection (2A) may, in particular, prescribe
45restrictions and conditions relating to—

(a) the end of A’s entitlement to adoption leave;

(b) the doing of work by A;

(c) the taking of prescribed steps by A or another person as regards
leave under section 75G of the Employment Rights Act 1996 in
respect of the child;

(d) 5the taking of prescribed steps by A or another person as regards
statutory shared parental pay in respect of the child.”

Other statutory rights

91 Statutory rights to leave and pay of prospective adopters with whom looked
after children are placed

(1) 10In section 75A of the Employment Rights Act 1996 (ordinary adoption leave),
after subsection (1) there is inserted—

“(1A) The conditions that may be prescribed under subsection (1) include
conditions as to—

(a) being a local authority foster parent;

(b) 15being approved as a prospective adopter;

(c) being notified by a local authority in England that a child is to
be, or is expected to be, placed with the employee under section
22C of the Children Act 1989.”

(2) In section 80B of the Employment Rights Act 1996 (entitlement to ordinary
20paternity leave: adoption)—

(a) in subsection (5), after paragraph (a) there is inserted—

“(aa) make provision excluding the right to be absent on leave
under this section in the case of an employee who, by
virtue of provision under subsection (6A), has already
25exercised a right to be absent on leave under this section
in connection with the same child;”;

(b) after subsection (6) there is inserted—

“(6A) Regulations under subsection (1) shall include provision for
leave in respect of a child placed, or expected to be placed,
30under section 22C of the Children Act 1989 by a local authority
in England with a local authority foster parent who has been
approved as a prospective adopter.

(6B) This section has effect in relation to regulations made by virtue
of subsection (6A) as if—

(a) 35references to being placed for adoption were references
to being placed under section 22C of the Children Act
1989 with a local authority foster parent who has been
approved as a prospective adopter;

(b) references to placement for adoption were references to
40placement under section 22C with such a person;

(c) paragraph (aa) of subsection (5) were omitted.”

(3) In section 171ZB of the Social Security Contributions and Benefits Act 1992
(entitlement to ordinary statutory paternity pay: adoption), after subsection (7)
there is inserted—

“(8) 45This section has effect in a case involving a child placed under section
22C of the Children Act 1989 by a local authority in England with a local

authority foster parent who has been approved as a prospective
adopter with the following modifications—

(a) the references in subsection (2) to a child being placed for
adoption under the law of any part of the United Kingdom are
5to be treated as references to a child being placed under section
22C in that manner;

(b) the reference in subsection (3) to the week in which the adopter
is notified of being matched with the child for the purposes of
adoption is to be treated as a reference to the week in which the
10prospective adopter is notified that the child is to be, or is
expected to be, placed with the prospective adopter under
section 22C;

(c) the reference in subsection (6) to placement for adoption is to be
treated as a reference to placement under section 22C;

(d) 15the definition in subsection (7) is to be treated as if it were a
definition of “prospective adopter”.

(9) Where, by virtue of subsection (8), a person becomes entitled to
statutory paternity pay in connection with the placement of a child
under section 22C of the Children Act 1989, the person may not become
20entitled to payments of statutory paternity pay in connection with the
placement of the child for adoption.”

(4) In section 171ZE of the Social Security Contributions and Benefits Act 1992
(rate and period of pay), after subsection (11) there is inserted—

“(12) Where statutory paternity pay is payable to a person by virtue of
25section 171ZB(8), this section has effect as if—

(a) the references in subsections (3)(b) and (10) to placement for
adoption were references to placement under section 22C of the
Children Act 1989;

(b) the references in subsection (10) to being placed for adoption
30were references to being placed under section 22C.”

(5) In section 171ZL of the Social Security Contributions and Benefits Act 1992
(entitlement to statutory adoption pay), after subsection (8) there is inserted—

“(9) This section has effect in a case involving a child who is, or is expected
to be, placed under section 22C of the Children Act 1989 by a local
35authority in England with a local authority foster parent who has been
approved as a prospective adopter with the following modifications—

(a) the references in subsections (2)(a) and (4A)(a) to a child being
placed for adoption under the law of any part of the United
Kingdom are to be treated as references to a child being placed
40under section 22C in that manner;

(b) the reference in subsection (3) to the week in which the person
is notified that he has been matched with the child for the
purposes of adoption is to be treated as a reference to the week
in which the person is notified that the child is to be, or is
45expected to be, placed with him under section 22C;

(c) the references in subsection (4B)(a) to adoption are to be treated
as references to placement under section 22C;

(d) the reference in subsection (5) to placement, or expected
placement, for adoption is to be treated as a reference to
50placement, or expected placement, under section 22C.

(10) Where, by virtue of subsection (9), a person becomes entitled to
statutory adoption pay in respect of a child who is, or is expected to be,
placed under section 22C of the Children Act 1989, the person may not
become entitled to payments of statutory adoption pay as a result of the
5child being, or being expected to be, placed for adoption.”

(6) In section 171ZN of the Social Security Contributions and Benefits Act 1992
(rate and period of pay), after subsection (8) there is inserted—

“(9) Where statutory adoption pay is payable to a person by virtue of
section 171ZL(9), this section has effect as if the reference in subsection
10(2E) to the week in which the person is notified that he has been
matched with a child for the purposes of adoption were a reference to
the week in which the person is notified that a child is to be, or is
expected to be, placed with him under section 22C of the Children Act
1989.”

(7) 15In the Social Security Contributions and Benefits Act 1992—

(a) in section 171ZJ(1), at the appropriate place there is inserted—

• ““local authority” has the same meaning as in the Children
  Act 1989 (see section 105(1) of that Act);”;

• ““local authority foster parent” has the same meaning as in
  20the Children Act 1989 (see section 22C(12) of that Act);”;

(b) in section 171ZS(1), at the appropriate place there is inserted—

• ““local authority” has the same meaning as in the Children
  Act 1989 (see section 105(1) of that Act);”;

• ““local authority foster parent” has the same meaning as in
  25the Children Act 1989 (see section 22C(12) of that Act);”.

92 Statutory rights to leave and pay of applicants for parental orders

(1) In section 75A of the Employment Rights Act 1996 (ordinary adoption leave),
after subsection (7) there is inserted—

“(8) The Secretary of State may by regulations provide for this section to
30have effect in relation to cases which involve an employee who has
applied, or intends to apply, with another person for a parental order
under section 54 of the Human Fertilisation and Embryology Act 2008
and a child who is, or will be, the subject of the order, with such
modifications as the regulations may prescribe.”

(2) 35In section 75B of the Employment Rights Act 1996 (additional adoption leave),
after subsection (8) there is inserted—

“(9) The Secretary of State may by regulations provide for this section to
have effect in relation to cases which involve an employee who has
applied, or intends to apply, with another person for a parental order
40under section 54 of the Human Fertilisation and Embryology Act 2008
and a child who is, or will be, the subject of the order, with such
modifications as the regulations may prescribe.”

(3) In section 75D of the Employment Rights Act 1996 (supplemental provision
about adoption leave), after subsection (1) there is inserted—

“(1A) 45Where section 75A or 75B has effect in relation to such cases as are
described in section 75A(8) or 75B(9), regulations under section 75A or

75B about evidence to be produced may require statutory declarations
as to—

(a) eligibility to apply for a parental order;

(b) intention to apply for such an order.”

(4) 5In section 80B of the Employment Rights Act 1996 (entitlement to ordinary
paternity leave: adoption), after subsection (8) there is inserted—

“(9) The Secretary of State may by regulations provide for this section to
have effect in relation to cases which involve an employee who has
applied, or intends to apply, with another person for a parental order
10under section 54 of the Human Fertilisation and Embryology Act 2008
and a child who is, or will be, the subject of the order, with such
modifications as the regulations may prescribe.”

(5) In section 171ZK of the Social Security Contributions and Benefits Act 1992
(power to apply Part 12ZA, statutory paternity pay, to adoption cases not
15involving placement)—

(a) in the title, the words “to adoption cases not involving placement” are
repealed;

(b) the existing text becomes subsection (1);

(c) after that subsection there is inserted—

“(2) 20The Secretary of State may by regulations provide for this Part
to have effect in relation to cases which involve a person who
has applied, or intends to apply, with another person for a
parental order under section 54 of the Human Fertilisation and
Embryology Act 2008 and a child who is, or will be, the subject
25of the order, with such modifications as the regulations may
prescribe.”

(6) In section 171ZT of the Social Security Contributions and Benefits Act 1992
(power to apply Part 12ZB, statutory adoption pay, to adoption cases not
involving placement)—

(a) 30in the title, the words “to adoption cases not involving placement” are
repealed;

(b) the existing text becomes subsection (1);

(c) after that subsection there is inserted—

“(2) The Secretary of State may by regulations provide for this Part
35to have effect in relation to cases which involve a person who
has applied, or intends to apply, with another person for a
parental order under section 54 of the Human Fertilisation and
Embryology Act 2008 and a child who is, or will be, the subject
of the order, with such modifications as the regulations may
40prescribe.

(3) Regulations under subsection (2) may modify section
171ZL(8)(c) so as to enable regulations to impose requirements
to make statutory declarations as to—

(a) eligibility to apply for a parental order;

(b) 45intention to apply for such an order.”

93 Statutory paternity pay: notice requirement and period of payment

(1) The Social Security Contributions and Benefits Act 1992 is amended as follows.