38.— (1) A children’s pension is granted and payments made on the condition that payments shall be applied for the benefit of the child or children for whom the pension was granted.

(2) Where—

(a) the deceased member leaves a surviving spouse or civil partner and in respect of the spouse or civil partner—

(i) no survivor’s pension was applied for,

(ii) if applied for, no entitlement to a survivor’s pension arose, or

(iii) if a survivor’s pension has been granted, it had ceased to be payable under this Part during the lifetime of the spouse or civil partner,

(b) no children’s pension was applied for by the spouse or civil partner in respect of any child of the deceased member who was in the custody of the spouse or civil partner, and

(c) subsequently the spouse or civil partner of the deceased member dies,

then no children’s pension is payable under this Part for a child to whom paragraph (b) relates in respect of the periods referred to in subsection (3) in respect of subparagraphs (i) to (iii) of paragraph (a).

(3) For the purposes of subsection (2) the periods are the following:

(a) where subparagraph (i) or (ii) of subsection (2)(a) applies, the period beginning on the date of the death of the deceased member concerned and ending on the date of the death of the spouse or civil partner;

(b) where subparagraph (iii) of subsection (2)(a) applies, the period beginning on the date the survivor’s pension ceased to be payable and ending on the date of the death of the spouse or civil partner.

(4) Where, but for this subsection, a children’s pension would not be payable because of subsections (2) and (3), the Minister or the relevant authority concerned may in the absolute discretion of the Minister or, subject to subsections (5) and (6), the relevant authority, as the case may be, direct that a children’s pension be payable and, where such a direction is made, the Minister or the relevant authority (as the case may be) may, if considered just and equitable in all the circumstances, further direct that the children’s pension shall be paid as respects the whole of the period concerned or as respects part of that period.

(5) The Minister may, from time to time, issue directions or other instructions in writing to all relevant authorities or to a class or classes of relevant authorities regarding or relating to the conditions under which a children’s pension may be paid. Directions or other instructions to which this subsection relates may be amended from time to time by the Minister in writing.

(6) In exercising or not exercising a discretion under this section, a relevant authority shall do so in accordance with any subsisting directions or other instructions issued to the authority under subsection (5).