Chapter CBTM12050
| Published date | 10 April 2016 |
| Record Number | CBTM12050 |
| Court | HM Revenue & Customs |
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 remainingDisregard
- 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 prisonA person ceases to be treated as being in prison when
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