# The Guardian’s Allowance (General) Regulations 2003, Regulation 7: Circumstances in which a person is to be treated as being in prison

Extent: E+W+S+N.I.

(1) The circumstances in which a person is to be treated as being in prison for the purposes of section 77 of the Act or section 77 of the Northern Ireland Act are that he is –
(a) serving a custodial sentence within the meaning of section 76 of the Powers of Criminal Courts (Sentencing) Act 2000, section 222 of the Sentencing Code or Article 2(2) of the Criminal Justice (Northern Ireland) Order 1996 or a sentence of detention or imprisonment within the meaning of section 307(1) of the Criminal Procedure (Scotland) Act 1995, of at least 2 years and the other parent is deceased; or
(b) detained in a hospital by order of the court under –
(i) section 37(1), 38, or 45A of the Mental Health Act 1983;
(ii) section 5 of the Criminal Procedure (Insanity) Act 1964;
(iii) section 6 or 14 of the Criminal Appeal Act 1968;
(iv) section 57, 57A or 59A of the Criminal Procedure (Scotland) Act 1995;
(v) Article 44, 45, 50A, or 51(2) and (3) of the Mental Health (Northern Ireland) Order 1986; or
(vi) section 11 or 13(5A) and (6) of the Criminal Appeal (Northern Ireland) Act 1980 .
(2) In calculating the length of the sentence for the purposes of paragraphs (1)(a) above and (4) below –
(a) disregard any reduction made to the length of the sentence to take account of any period spent in custody prior to sentencing; and
(b) include any period spent in custody immediately prior to sentencing, save that where he is serving a custodial sentence or sentence of detention or imprisonment with the meaning of paragraph (1)(a) above immediately prior to sentencing, include only such period of that sentence as remains following sentencing for the later sentence,
but nothing in this paragraph shall permit the payment of guardian’s allowance in respect of any period in custody prior to sentencing.
(3) Subject to paragraph (4) below, a person shall not cease to be treated as being in prison in accordance with paragraph (1) above by virtue of the fact that he is temporarily released, unlawfully at large, or, in the case of a person serving a sentence, transferred to a hospital.
(4) A person serving a sentence in accordance with paragraph (1)(a) above shall cease to be treated as being in prison in accordance with that paragraph where –
(a) he is released on licence, the remainder of his sentence is remitted, his sentence is reduced on appeal to a term of less than 2 years, or his conviction is quashed on appeal; or
(b) he is not in custody and has not been in custody for a period at least equal to the remaining period of his sentence,
but that where a person to whom sub-paragraph (b) applies returns to prison to serve the remainder of the sentence, the length of the sentence for the purposes of paragraph (1)(a) above shall be the period of the remainder of the sentence.
(5) This regulation shall apply, subject to the necessary modifications, to a parent who is outside Great Britain or Northern Ireland and serving a custodial sentence with not less than 2 years remaining from the death of the other parent or detained in a hospital by a court order.

---
Source: https://www.legislation.gov.uk/uksi/2003/495/regulation/7 (the official version)
Page: https://openlegislation.uk/guardians-allowance-general-regulations-2003/regulation-7
Contains public sector information licensed under the Open Government Licence v3.0. Source: legislation.gov.uk, The National Archives.