Children's Handbook Scotland 2020/21Chapter 4: Disabled children in care homes1. Benefits and tax credits for children in care homes Means-tested benefits
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Means-tested benefits
Universal credit
 
If your child counts as looked after
If your child is in a care home and counts as ‘looked after’ by the local authority, s/he is no longer included in your universal credit (UC) claim, unless it is a ‘planned short break’ (respite).1Regs 4 and 4A(1)(a) UC Regs
This means that any child element you receive stops.2Reg 24 UC Regs If you are in rented accommodation, the housing costs element is calculated as if the child is still living with you for the first six months of absence from home, providing the child was included in the housing costs element before going into a care home.3Sch 4 Part 3 para 11(2)(a) UC Regs If your UC includes the carer element, this stops when you no longer have ‘regular and substantial’ caring responsibilities for your child (see here), including if your child’s disability living allowance (DLA) care component or personal independence payment (PIP) daily living component has stopped being paid.4Regs 29 and 30 UC Regs If the child element has stopped and you have no other dependent children, you will not get a work allowance (see here) unless you or your partner have limited capability for work.5Reg 22 UC Regs If you receive help with childcare costs for the child in your UC, this will stop.6Reg 33 UC Regs The work-related requirements which apply to you may also change (see here).
Note: if the only reason you are exempt from the benefit cap (see here) is because a child for whom you are responsible is entitled to DLA (or PIP), this exemption ends if the child no longer counts as part of your household.7Regs 79 and 83 UC Regs
 
If your child does not count as looked after
If your child does not count as ‘looked after’ by the local authority, s/he should still be included in your UC claim if her/his absence from home is temporary. However, s/he is no longer included in the claim if the stay away from home is expected to last for more than six months, or has lasted for more than six months.8Reg 4(7) UC Regs There is no rule ‘linking’ two or more periods of absence and, therefore, arguably, even a brief stay at home followed by a return to a care home could start a new temporary period of absence. While the child is still included in your UC claim, you continue to get the child element and any disabled child element, even if DLA care component or PIP daily living component has stopped being paid (see here).9Reg 24(2) UC Regs Your work allowance (see here) is calculated taking into account that you have a dependent child.10Reg 22 UC Regs If your UC includes the carer element, this stops when you no longer have ‘regular and substantial’ caring responsibilities for your child (see here), including if your child’s DLA care component or PIP daily living component has stopped being paid.11Regs 29 and 30 UC Regs If you receive help with childcare costs in your UC, this may change if you are no longer paying for childcare because your child is in a care home.
Note: if the only reason you are exempt from the benefit cap (see here) is because a child for whom you are responsible is entitled to DLA (or PIP), this exemption ends if the child no longer counts as part of your household (either because s/he counts as ‘looked after’, see above, or because s/he has been away for more than six months).12Regs 79 and 83 UC Regs
 
1     Regs 4 and 4A(1)(a) UC Regs »
2     Reg 24 UC Regs »
3     Sch 4 Part 3 para 11(2)(a) UC Regs »
4     Regs 29 and 30 UC Regs »
5     Reg 22 UC Regs »
6     Reg 33 UC Regs »
7     Regs 79 and 83 UC Regs »
8     Reg 4(7) UC Regs »
9     Reg 24(2) UC Regs »
10     Reg 22 UC Regs »
11     Regs 29 and 30 UC Regs »
12     Regs 79 and 83 UC Regs »
Income support and income-based jobseeker’s allowance
During the first 12 weeks of a temporary absence, your child is still treated as part of your household for income support (IS) and income-based jobseeker’s allowance (JSA).1IS Reg 16(1) and (5)(b) IS Regs
JSA Reg 78(1) and 5(c) JSA Regs After 12 weeks’ absence, s/he is still treated as part of your household provided you are still in ‘regular contact’ with her/him.2IS Reg 16(5)(b) IS Regs
JSA Reg 78(5)(c) JSA Regs ‘Regular contact’ is not defined. Department for Work and Pensions (DWP) guidance says that regular contact includes visits, letters and telephone calls that take place regularly or frequently, and that weekly or monthly visits are considered regular contact.3para 22074 DMG The DWP usually continues to treat the child as part of your household for the first year of absence, provided child benefit remains in payment for her/him.4para 22075 DMG After 52 weeks in a care home, a child is usually no longer treated as being part of your household, but there are exceptions (see below).
How your IS/income-based JSA is affected depends on whether or not you still get amounts in your benefit for your child (see below).
 
If you do not get amounts for your child
Most claimants do not get amounts in their IS/income-based JSA for their child(ren). In this situation, the amount of benefit you get should be unaffected by your child being in a care home, unless you stop being entitled to carer’s allowance (CA) for her/him or s/he no longer counts as part of your household (see here). If you stop being entitled to CA for the child, entitlement to the carer premium stops eight weeks after this date (see here).5IS Sch 2 para 14ZA(3) IS Regs
JSA Sch 1 para 17(3) JSA Regs If claiming CA was the only basis of your IS claim, from eight weeks after your CA ends you are no longer able to claim IS on that basis.6Sch 1B para 5 IS Regs If the child no longer counts as part of your household, your benefit may be affected. For example, if you no longer count as caring for a child aged under five, you cannot claim IS as a lone parent.
 
If you still get amounts for your child
Your IS/income-based JSA may still include amounts for your child (child allowances and premiums). This will only be the case if you have been claiming IS/income-based JSA including amounts for a child since before 6 April 2004 and have not claimed child tax credit (CTC). See here for more details.
In most cases, providing your child’s stay in a care home is temporary, s/he continues to be treated as part of your household for IS/income-based JSA, and you continue to get a child personal allowance and family premium in your applicable amount for up to 52 weeks (sometimes for longer - see here).
However, the amount of IS/income-based JSA may change during the 52-week period because of the impact on premiums (part of your ‘applicable amount’ – see here).
    •The carer premium stops eight weeks after your CA stops (see here).7IS Sch 2 para 14ZA(3) IS Regs
    JSA Sch 1 para 17(3) JSA Regs
    •The disabled child premium stops when your child’s DLA care component or PIP daily living component stops (see here), unless there is another basis for getting it – ie, your child is still getting DLA mobility component, PIP mobility component or is severely sight impaired or blind.8IS Sch 2 para 14 IS Regs, pre-amendment by SS(WTCCTC)(CA) Regs
    JSA Sch 1 para 16 JSA Regs, pre-amendment by SS(WTCCTC)(CA) Regs
    •The enhanced disability premium stops when your child’s DLA care component or PIP daily living component stops (see here).9IS Sch 2 para 13A IS Regs, pre-amendment by SS(WTCCTC)(CA) Regs
    JSA Sch 1 para 15A JSA Regs, pre-amendment by SS(WTCCTC)(CA) Regs
 
When a child stops being treated as part of your household
If the stay in a care home is expected to last for more than 52 weeks, or if it has lasted for more than 52 weeks, the child is no longer treated as part of your household for IS/income-based JSA purposes.10IS Reg 16(2) IS Regs
JSA Reg 78(2) JSA Regs This means that if you have still been getting amounts for your child in your IS/income-based JSA, these will stop. The exception to this rule is if:11IS Reg 16(2) IS Regs
JSA Reg 78(2) JSA Regs
    •there are exceptional circumstances; and
    •the absence is unlikely to be substantially more than 52 weeks.
Note: when a place in a care home has been arranged by the local authority and the child is away from home for more than 24 hours, technically the child is ‘looked after’ by the local authority.12s17(6) and 25(8) C(S)A 1995 Applied strictly, the rules mean that the child should not be treated as part of your household for IS/income-based JSA after s/he has been in a care home for 24 hours.13IS Reg 16(5)(c) IS Regs
JSA Reg 78(4)(f) JSA Regs In practice, however, it seems that the DWP applies the rules described above.
 
1     IS Reg 16(1) and (5)(b) IS Regs
JSA Reg 78(1) and 5(c) JSA Regs »
2     IS Reg 16(5)(b) IS Regs
JSA Reg 78(5)(c) JSA Regs »
3     para 22074 DMG »
4     para 22075 DMG »
5     IS Sch 2 para 14ZA(3) IS Regs
JSA Sch 1 para 17(3) JSA Regs »
6     Sch 1B para 5 IS Regs »
7     IS Sch 2 para 14ZA(3) IS Regs
JSA Sch 1 para 17(3) JSA Regs »
8     IS Sch 2 para 14 IS Regs, pre-amendment by SS(WTCCTC)(CA) Regs
JSA Sch 1 para 16 JSA Regs, pre-amendment by SS(WTCCTC)(CA) Regs  »
9     IS Sch 2 para 13A IS Regs, pre-amendment by SS(WTCCTC)(CA) Regs
JSA Sch 1 para 15A JSA Regs, pre-amendment by SS(WTCCTC)(CA) Regs »
10     IS Reg 16(2) IS Regs
JSA Reg 78(2) JSA Regs »
11     IS Reg 16(2) IS Regs
JSA Reg 78(2) JSA Regs »
12     s17(6) and 25(8) C(S)A 1995  »
13     IS Reg 16(5)(c) IS Regs
JSA Reg 78(4)(f) JSA Regs  »
Income-related employment and support allowance
There are no amounts in employment and support allowance (ESA) for dependent children and, therefore, your ESA is not normally affected if your child goes into a care home. The exception is if you are entitled to CA and this stops (see here). The carer premium (part of your income-related ESA applicable amount) stops eight weeks after your entitlement to CA stops.1Sch 4 para 8(2) ESA Regs
 
1     Sch 4 para 8(2) ESA Regs »
Pension credit
If you are entitled to CA and this stops, the carer addition (part of your pension credit (PC)) stops eight weeks after your entitlement to CA stops (see here).1Sch 1 para 4(3) SPC Regs Some PC claimants who are responsible for a child or qualifying young person get an additional amount for the child(ren) in their PC (instead of getting CTC). If you get a PC additional amount for a child and s/he goes into a care home, and the child does not count as ‘looked after’ by the local authority, the additional amount continues during a temporary period in a care home which is unlikely to last for more than 52 weeks or, in exceptional circumstances, unlikely to last for substantially more than 52 weeks.2Sch IIA para 6 SPC Regs The extra amount that you may get if your child has a disability (see here) continues during a temporary absence even if your child’s DLA or PIP has stopped being paid (see here).3Sch IIA para 9 SPC Regs If your child is in a care home and counts as looked after by the local authority, you no longer get the PC additional amount, unless it is a ‘planned short break’ (respite).4Sch IIA para 4 SPC Regs
 
1     Sch 1 para 4(3) SPC Regs »
2     Sch IIA para 6 SPC Regs »
3     Sch IIA para 9 SPC Regs »
4     Sch IIA para 4 SPC Regs »
Housing benefit and council tax reduction
Housing benefit (HB) and council tax reduction (CTR) may be affected in several ways if your child is in a care home. How they are affected can depend on whether s/he counts as ‘looked after’ by the local authority.1As defined in s17(6) C(S)A 1995 Ask the social work department of your local council if you are not sure whether your child counts as ‘looked after’.
 
If your child counts as looked after
A child who is in a care home for more than 24 hours, arranged by the local authority, is technically a ‘looked-after’ child.2ss17(6) and 25(8) C(S)A 1995; JMcRae, Children Looked After by Local Authorities: the legal framework, Social Work Inspection Agency, 2006, p69 If s/he is in the care home for less than a week, or if s/he comes home for at least part of every week, your HB and CTR are not affected, provided the local authority considers it reasonable to assess benefit as though the child were at home.3HB Reg 21(5) HB Regs; reg 21(5) HB(SPC) Regs
CTR Reg 11(4) CTR(S) Regs; reg 11(4) CTR(SPC)(S) Regs A longer stay, however, may affect your benefit. Your entitlement to the personal allowance and any premiums for the child (including family premium if s/he is your only dependent child) may stop as soon as s/he goes into the care home.4HB Reg 21(4)(a) HB Regs; reg 21(4)(a) HB(SPC) Regs
CTR Reg 11(3)(a) CTR(S) Regs; reg 11(3)(a) CTR(SPC)(S) Regs Your carer premium stops eight weeks after your CA stops.
If you are on IS, income-based JSA, income-related ESA or the guarantee credit of PC, you are ‘passported’ to maximum HB/CTR. However, your HB may still be reduced because of the number of bedrooms you are deemed to require (the ‘size criteria’). This means that if your HB is calculated using the local housing allowance rules (see here), it may be affected if the child no longer counts as occupying the home and as a result you need fewer bedrooms.5Regs 13D and 21(1) and (2) HB Regs; regs 13D and 21(1) and (2) HB(SPC) Regs If you are under pension age and living in the social rented sector and your child no longer counts as occupying the home, you may be deemed to need fewer bedrooms and be subject to the ‘under-occupation penalty’ (bedroom tax).6HB Reg B13 HB Regs
CTR Sch 1 para 14(4) CTR(S) Regs; Sch 1 para 10(2) CTR(SPC)(S) Regs It may be possible to argue that, even though the child is not part of your ‘household’ for HB, s/he should still count as an ‘occupier’ and s/he should still be included in the size criteria – eg, if s/he is not likely to be away indefinitely.7Regs B13 and 13D HB Regs define ‘occupier’ as a person whom the local authority is satisfied occupies the claimant’s dwelling as her/his home. Seek advice if you are in this situation.
If your HB is reduced, you can ask for a discretionary housing payment (see here) to make up some or all of the difference. Because these are discretionary, it is important to say why you need financial assistance. As well as explaining how the reduction of benefit will affect you financially, you could explain that your child is in the ‘looked after’ system only because this is a consequence of her/him having to go into a care home as a result of disability, and that the rules were never intended to reduce benefit for disabled children in these circumstances.
Note: if the only reason you are exempt from the benefit cap (see here) is because the child for whom you are responsible is entitled to DLA (or PIP), this exemption ends if the child no longer counts as part of your household.8Regs 75A and 75F HB Regs
 
If your child does not count as looked after
If your child does not count as a ‘looked-after’ child (eg, the care is not arranged through the local authority or the local authority does not treat her/him as such for HB/CTR purposes), provided her/his absence is temporary, s/he continues to be treated as part of your household for HB/CTR for up to 52 weeks (sometimes for longer).9HB Reg 21(1) and (2) HB Regs; reg 21 (1) and (2) HB(SPC) Regs
CTR Reg 11(1) CTR(S) Regs; reg 11(1) CTR(SPC)(S) Regs
However, the amount of HB/CTR may change during the 52-week period because of the impact on premiums (part of your ’applicable amount’ – see here).
    •The carer premium stops eight weeks after your CA stops.10HB Sch 3 para 17(2) HB Regs; Sch 3 para 9(2) HB(SPC) Regs
    CTR Sch1 para 14(2) CTR(S) Regs; Sch 1 para 10(2) CTR(SPC)(S) Regs
    •The disabled child premium stops when the child’s DLA care component or PIP daily living component stops, unless there is another basis for getting it – ie, your child is still getting DLA mobility component, PIP mobility component or is severely sight impaired or blind.11HB Sch 3 para 16 HB Regs; Sch 3 para 8 HB(SPC) Regs
    CTR Sch 1 para 13 CTR(S) Regs; Sch 1 para 9 CTR(SPC)(S) Regs
    •The enhanced disability premium (child) stops when the child’s DLA care component or PIP daily living component stops.12HB Sch 3 para 15 HB Regs; Sch 3 para 7 HB (SPC) Regs
    CTR Sch 1 para 12 CTR(S) Regs; Sch 1 para 8 CTR(SPC)(S) Regs
If the absence is likely to last for more than 52 weeks, or if it has lasted for more than 52 weeks, the child is usually no longer treated as part of your household for HB. This means that the amounts in your HB applicable amount for the child will stop. The exception to this rule is if:13Reg 21(2)(b) HB Regs; reg 21(2)(b) HB(SPC) Regs
    •there are exceptional circumstances and you have no control over the length of her/his absence; and
    •the absence is unlikely to be to be substantially more than 52 weeks.
If you are on IS, income-based JSA, income-related ESA or the guarantee credit of PC, you are ‘passported’ to maximum HB/CTR. However, your HB may still be reduced because of the impact on the number of bedrooms you are deemed to require (the ‘size criteria’). This means that if your HB is calculated using the local housing allowance rules (see here), it may be affected if the child no longer counts as occupying the home and as a result you need fewer bedrooms.14Reg 13D HB Regs; reg 13D HB(SPC) Regs If you are under pension age and living in the social rented sector and your child no longer counts as occupying the home, you may be deemed to need fewer bedrooms and be subject to the ‘under-occupation penalty’ (bedroom tax).15Reg B13 HB Regs It may be possible to argue that, even though the child is not part of your ‘household’ for HB/CTR, s/he should still count as an ‘occupier’ and s/he should still be included in the size criteria – eg, if s/he is not likely to be away indefinitely.16Regs B13(5) and 13D(12) HB Regs define ‘occupier’ as a person whom the relevant authority is satisfied occupies the claimant’s dwelling as her/his home. Seek further advice if you are in this situation and look at claiming a discretionary housing payment (see here).
For CTR, a child is treated as part of your household if her/his absence is temporary.17Reg 11(1) CTR(S) Regs; reg 11(1) CTR(SPC)(S) Regs There is no ‘52-week rule’ for CTR. This gives local authorities more flexibility with CTR than with HB.
Note: if the only reason you are exempt from the benefit cap (see here) is because a child for whom you are responsible is entitled to DLA (or PIP), this exemption ends if the child no longer counts as part of your household – eg, because s/he has been absent for more than 52 weeks.18Regs 75A and 75F HB Regs
 
1     As defined in s17(6) C(S)A 1995 »
2     ss17(6) and 25(8) C(S)A 1995; JMcRae, Children Looked After by Local Authorities: the legal framework, Social Work Inspection Agency, 2006, p69 »
3     HB Reg 21(5) HB Regs; reg 21(5) HB(SPC) Regs
CTR Reg 11(4) CTR(S) Regs; reg 11(4) CTR(SPC)(S) Regs »
4     HB Reg 21(4)(a) HB Regs; reg 21(4)(a) HB(SPC) Regs
CTR Reg 11(3)(a) CTR(S) Regs; reg 11(3)(a) CTR(SPC)(S) Regs »
5     Regs 13D and 21(1) and (2) HB Regs; regs 13D and 21(1) and (2) HB(SPC) Regs »
6     HB Reg B13 HB Regs
CTR Sch 1 para 14(4) CTR(S) Regs; Sch 1 para 10(2) CTR(SPC)(S) Regs  »
7     Regs B13 and 13D HB Regs define ‘occupier’ as a person whom the local authority is satisfied occupies the claimant’s dwelling as her/his home. »
8     Regs 75A and 75F HB Regs »
9     HB Reg 21(1) and (2) HB Regs; reg 21 (1) and (2) HB(SPC) Regs
CTR Reg 11(1) CTR(S) Regs; reg 11(1) CTR(SPC)(S) Regs »
10     HB Sch 3 para 17(2) HB Regs; Sch 3 para 9(2) HB(SPC) Regs
CTR Sch1 para 14(2) CTR(S) Regs; Sch 1 para 10(2) CTR(SPC)(S) Regs »
11     HB Sch 3 para 16 HB Regs; Sch 3 para 8 HB(SPC) Regs
CTR Sch 1 para 13 CTR(S) Regs; Sch 1 para 9 CTR(SPC)(S) Regs »
12     HB Sch 3 para 15 HB Regs; Sch 3 para 7 HB (SPC) Regs
CTR Sch 1 para 12 CTR(S) Regs; Sch 1 para 8 CTR(SPC)(S) Regs »
13     Reg 21(2)(b) HB Regs; reg 21(2)(b) HB(SPC) Regs »
14     Reg 13D HB Regs; reg 13D HB(SPC) Regs »
15     Reg B13 HB Regs »
16     Regs B13(5) and 13D(12) HB Regs define ‘occupier’ as a person whom the relevant authority is satisfied occupies the claimant’s dwelling as her/his home. »
17     Reg 11(1) CTR(S) Regs; reg 11(1) CTR(SPC)(S) Regs »
18     Regs 75A and 75F HB Regs »
Scottish child payment
Scottish child payment continues while the child is in a care home, providing you continue to satisfy the conditions of entitlement (see here).