Section 38 Guardian's allowance

(1)

Subject to the provisions of this Act (and in particular to those of section 43 imposing limitations on payment of benefit in respect of children), a person shall be entitled to a guardian's allowance at the weekly rate specified in relation thereto in Schedule 4, Part III, paragraph 4, in respect of a child of his family, where the circumstances are any of those specified in subsection (2) below.

(2)

The circumstances referred to in subsection (1) are—

(a)

that both of the child's parents are dead; or

(b)

that one of the child's parents is dead and the person claiming a guardian's allowance shows that he was at the date of the death unaware of, and has failed after all reasonable efforts to discover, the whereabouts of the other parent; or

(c)

that one of the child's parents is dead and the other is in prison.

(3)

There shall be no entitlement to a guardian's allowance in respect of a child unless at least one of the child's parents satisfies, or immediately before his death satisfied, such conditions as may be prescribed as to nationality, residence, place of birth or other matters.

(4)

Regulations—

(a)

may modify subsection (2) or (3) above in relation to cases in which a child has been adopted or is illegitimate, or the marriage of a child's parents has been terminated by divorce;

(b)

shall prescribe the circumstances in which a person is to be treated for the purposes of this section as being in prison (by reference to his undergoing a sentence of imprisonment for life or of a prescribed minimum duration, or to his being in legal custody in prescribed circumstances); and

(c)

may, for cases where entitlement to a guardian's allowance is established by reference to a person being in prison, provide—

(i)

for requiring him to pay to the National Insurance Fund sums paid by way of a guardian's allowance;

(ii)

for suspending payment of an allowance where a conviction, sentence or order of a court is subject to appeal, and for matters arising from the decision of an appeal;

(iii)

for the cases in which a child is to be treated as a child of the claimant's family; and

(iv)

for reducing the rate of an allowance in cases where the person in prison contributes to the cost of providing for the child.

(5)

In the case of a child who is a child of the family of a man and his wife, the wife only shall be entitled to a guardian's allowance; but subsections (2) to (6) of section 4 of the Family Allowances Act (which specify the persons who are to receive an allowance under that Act payable in respect of such a child) shall apply in relation to a guardian's allowance as they apply in relation to an allowance under that Act.

(6)

No person shall be entitled to a guardian's allowance in respect of a child of which he or she is the parent.