Will my DH be able to take additional paternity leave if I start a full time education course rather than return to work?

[Chocolocolate]

I am currently employed and will be entitled to SMP.

My DH is also employed.

When my baby will be seven months old, I would like to complete my full time (first) university degree. I suspended my course for 2 years due to ill health and now pregnancy, but got a job that was possible to do despite the ill health.

If I want to complete the degree I will have to start the final year next June.

We would love for my DH to then take 5 months APL.

Will this be possible? It will be a full time course funded by a bursary.

Makes no difference what you're doing so long as you're not on maternity leave.

I have a feeling that you have to return to work for your husband to qualify for it, but I'm not certain. I did some work on this a few months ago for my company but it was a while ago now.

Yes.

Makes no difference what you're doing so long as you're not on maternity leave.

www.direct.gov.uk/en/Parents/Moneyandworkentitlements/WorkAndFamilies/Paternityrightsintheworkplace/DG_190788

The link above states that the mother must have returned to work, I'm afraid. I don't know how his employer would check this, but there you go.

www.direct.gov.uk/en/Parents/Moneyandworkentitlements/WorkAndFamilies/Paternityrightsintheworkplace/DG_190788

Have checked CIPD website which suggests maternity leave having ended as the main requirement for an employee taking additional paternity leave but then mentions returning to work almost as an aside later.

I suppose you could return notionally (ie return officially, take all your owed annual leave and resign to coincide your exit when that runs out) and there is no way to check that I can see unless you work for the same organisation.

This is interesting. I've looked at the actual legislation and in the entitlement bit it says the mother must have returned to work, as it does on Directgov and elsewhere I've checked, but later on in the legislation there is a definition of what 'return to work' means in the context of the Regulations:

"Return to work

25. For the purposes of these Regulations, a mother (?M?) or adopter (?A?) is treated as returning to work if one of the following situations applies?

(a)in a case where M or A is entitled to maternity leave or to adoption leave in respect of a child (?C?), the leave period has ended;

(b)in a case where M or A is entitled, in respect of C, to payment of:

(i)maternity allowance, that payment is not payable by virtue of regulations made under section 35(3)(a)(i) of the Social Security Contributions and Benefits Act 1992(1);

(ii)statutory maternity pay, that payment is not payable in accordance with section 165(4) or (6) of the Social Security Contributions and Benefits Act 1992(2); or

(iii)statutory adoption pay, that payment is not payable in accordance with section 171ZN(3) or (5) of the Social Security Contributions and Benefits Act 1992 Act(3);

(c)in a case where both (a) and (b) apply, the conditions in both (a) and (b) are satisfied."

So it doesn't actually say she must physically have gone back to work and must be still employed, just that her mat leave must have ended and/or she is no longer entitled to any SMP or MA. I wonder if that's an oversight/poorly drafted regulations or whether the intention is genuinely that it doesn't matter what the mother is doing. The fact that they refer to 'return to work' throughout suggests the intention is that the mother must have actually returned, but in the definition it doesn't actually specifically say that.

Wow, that's all confusing.

I do work for the same organisation I'm afraid, but I could go back, say for a month or take leave etc. then resign. They wouldn't know where I was going and by that point it'd all be set up for DH to be taking it.

Is that fraudulent at all?

Alternatively, what would be the lowest number of part-time hours I'd have to be working to have 'returned to work' - could this be another option.

DH and I really want him to have this opportunity to be the primary carer and spend time with our child, while still having a job to go back to.

Also, does 'return to work' mean 'return and remain there for the entirety of DH's APL' or just 'return to prove you've ended your mat leave'???

Here's my best guess of how it works...

I think that, if you are in the SMP period, you do have to return to work, either with your current employer or a new one. This is because the circumstances in which SMP stops under those two sub-sections of the Social Security Contributions...Act that Flowery references are returning to work and starting with a new employer.

If you have exhausted SMP, I think your maternity leave just has to have ended, which it will if you leave employment.

However, I can see nothing which says that you have to return for a set period, or work X hours. So I don't see why you couldn't 'return' from maternity leave, take a few days of accrued holiday, then have your employment terminate and have your DH still be entitled to APL. Likewise, you could have a 5 hour per week job with a new employer whilst studying, and he would still be entitled.

I've dug out my notes from when I looked at the legislation before it came into effect and I see I've written "depends on mother's leave??!!" at the top and circled it because it did look as if a father's entitlement depended on the mother's and included the possibility that APP would not be available to partners (i say partners. The definition of father is so loose) where a mother/adoptee has not taken maternity/adoption leave.

However, all the practioner level stuff I've read since looks more relaxed hence my original post.

Sorry that's not much help but I think it's interesting and will be interesting to see what happens with cases being brought to clarify the law.

OP why don't you ask your organisation what they need? Or if you have what did they say?

The intention is that the mother returns to work. Are you going to be able to live on the paternity payments and the bursary? If not, it will probably become apparent that you are not working and at uni; especially as you both work for the same employer. Surely if they had good HR processes in place and you resigned (without a new job) they would be expecting your DH to return to work.

I rang HMRC last week and asked this exact question. I was told that I needed to be working 16 hours per week in order for DP to be able to take SPP.