Commentary on Sections Schedule 24 – Social security, child support and tax credits Part 3 – Amendments of the Social Security Contributions and Benefits Act 1992 (c. 4)
795.Paragraphs 13 to 54 amend the Social Security Contributions and Benefits Act 1992.
796.Paragraph 13 amends the description in section 20 of category B retirement pension as a contributory benefit to reflect the fact that civil partners will be entitled like spouses (see commentary on paragraphs 23 to 33 below).
797.Paragraphs 14 and 15, dealing with incapacity benefit, provide for taking account of contributions of a deceased civil partner and disregarding certain increases for civil partners in state retirement pension.
798.Paragraphs 16 to 22 ensure that surviving civil partners are eligible (in the same way as spouses) for bereavement payment, bereavement allowance and widowed parent’s allowance on the basis of their deceased civil partner’s National Insurance contribution record. They also extend the rule that prevents certain bereavement benefits (and the widows’ benefits which continue to be paid to women widowed before April 2001) from being paid if the survivor starts to live together as husband and wife with a person of the opposite sex to the situation where the survivor starts to live together with a person of the same sex as if they were civil partners. (For the meaning of “living together as if they were civil partners”, see commentary on paragraphs 42 to 46 below.) Further, they extend the rule that entitlement to these benefits ceases if the person remarries to cases where the person forms a new civil partnership.
799.Paragraphs 23 to 33  and 51 extend state pension rights to civil partners. Currently, a married woman (but not a married man) can use her husband's National Insurance contribution record to qualify for a basic state pension when they have both reached state pension age. Civil partners (like married men) will be able to qualify for these pensions when their civil partners who were born on or after 6 April 1950 reach state pension age. Because of the difference in state pension ages, this means that female civil partners will qualify from 2010 onwards and male civil partners from 2015 onwards.
800.Where a woman is widowed after reaching state pension age she can qualify for a state pension calculated as if her husband was entitled to it when he died, regardless of her husband’s age on death. It consists of a basic pension plus additional pension (a percentage of SERPS depending on when the spouse reached pensionable age and 50 per cent of any State Second Pension). Until 2010 civil partners, like widowers, will only be able to receive these pensions if both spouses or civil partners are over state pension age when the first one dies. However, widowers and civil partners who reach pension age on or after 6 April 2010 will be able to qualify regardless of the age at which their wife or civil partner dies (i.e. on the same basis as widows).
801.Where a spouse is widowed before reaching pension age a state pension can be awarded if a widow or widower at any time in the past was entitled to a bereavement allowance or widowed parent’s allowance when over age 45 but only as additional pension and, if aged 45 to 54 when widowed, it is reduced on a sliding scale. These provisions will apply to civil partners from the implementation date.
802.Where a marriage or civil partnership has ended, the contributions of the former spouse or civil partner may be substituted for the period of the marriage or civil partnership to allow a person to qualify for a basic state pension.
803.Paragraph 34(a) amends section 77(6)(a)(ii) so that where a child in respect of whom guardian’s allowance is payable is not living with the beneficiary, any contributions made by the civil partner of the beneficiary count towards the cost of providing for the child if the beneficiary and his or her civil partner are living together.
804.Paragraph 34(b) extends the power in section 77(8)(a) to modify by regulations the circumstances in which the conditions of entitlement to guardian’s allowance are satisfied in cases where a civil partnership has been dissolved.
805.Paragraph 35 ensures that a woman’s civil partner will be treated in the same way as her spouse would be for the purposes of determining whether adult dependency increases are payable with maternity allowance.
806.Paragraphs 36 and 37 provide for civil partners to be treated in the same way as spouses for the purpose of determining whether adult dependency increases are payable with the state pension. This will apply from the date when the rules are equalised as between men and women in 2010.
807.Paragraph 38 ensures that the provisions as to disqualification and suspension will apply to civil partners as they do to spouses.
808.Paragraph 39 ensures that the rules set out in regulations that specify how to determine whether a person is maintaining another for the purposes of adult dependency increases will apply to civil partners as they do to spouses.
809.Paragraph 40 provides for a voidable civil partnership which has been annulled to be treated for state pension purposes as a valid civil partnership which has been dissolved. This creates parity with the current position for marriage.
810.Paragraph 41 amends the definition of relative to include a person related by civil partnership when determining whether a carer satisfies the conditions of entitlement for claiming carer’s allowance.
811.Paragraphs 42 to 46 amend the definition of terms relating to family membership within income support, housing and council tax benefits. In the case of a married or unmarried couple only one of them can claim these benefits and the other’s needs and resources are also taken into account. For income support, benefit is only payable when neither one of the couple is in remunerative work (defined as 16 hours per week paid work for the claimant and 24 hours a week paid work for the claimant’s partner). The amendments will ensure that civil partners are treated in the same way as married couples and that same-sex couples who are living together as if they were civil partners are treated in the same way as opposite-sex couples who are living together as husband and wife. Currently, unmarried couples who are living together as husband and wife are treated in the same way as married couples because otherwise they would benefit financially from choosing not to formalise their relationship. Similarly, the amendments ensure that a same-sex couple who are “living together as if they were civil partners” will be treated in the same way as a same-sex couple in a civil partnership. A same-sex couple will be regarded as “living together as if they were civil partners” for the purposes of the legislation if (but only if) they would be regarded as living together as husband and wife were they instead two people of the opposite sex. This definition is to ensure that the body of case law that applies to those living together as husband and wife will also apply to those living together as civil partners.
812.Paragraph 47 amends section 143(5) to allow the child benefit regulations to be amended in due course to allow contributions made, or expenditure incurred, by one civil partner towards the cost of providing for the child to be treated as made or incurred by the other civil partner with whom he or she is residing. This is necessary because the regulations currently provide that where one of two spouses living together is making contributions, or incurring expenditure in respect of the child, that contribution or expenditure may be treated as made or incurred by the other spouse.
813.Paragraph 48(2) amends section 145A(2) so that where a child dies and within the prescribed period following the child’s death the person entitled to child benefit in respect of the child also dies, the civil partner of the beneficiary, or if the beneficiary was a member of a cohabiting same-sex couple, the other member of the couple, will be entitled to child benefit for the remainder of the prescribed period.
814.Paragraph 48(3) defines for the purposes of section 145A(2) the terms “civil partnership” and “cohabiting same-sex couple”.
815.Paragraph 48(4) inserts subsection 145A(6) which provides that two people of the same sex will be treated as living together as if they were civil partners if, but only if, they would be regarded as living together as husband and wife if they were instead two people of the opposite sex.
816.Paragraph 49 amends the definition of “war widow’s pension”. These pensions will continue to act as qualifying benefits for the pensioners’ Christmas bonus when they become available to surviving civil partners.
817.Paragraph 50 inserts a reference to “civil partner” and “civil partnership” in subsection (4) of section 171ZL of the Social Security Contributions and Benefits Act 1992 to ensure civil partners are entitled to statutory adoption pay in the same way as spouses.
818.Paragraphs 52 to 53 provide for account to be taken of civil partners or persons living together as if they were civil partners when determining increases of disablement pension or industrial diseases benefit or termination of industrial death benefit for widows.
819.Paragraph 54 amends paragraph 3 of Schedule 9 to the Act so except where regulations otherwise provide, a person is excluded from entitlement to child benefit where the child is a civil partner.