SSC/S5/21/6/A
SOCIAL SECURITY COMMITTEE
AGENDA
6th Meeting, 2021 (Session 5)
Thursday 4 March 2021
The Committee will meet at 9.00 am in a virtual meeting to be broadcast on scottishparliament.tv
1. Subordinate legislation: The Committee will take evidence on the Disability Assistance for Children and Young People (Scotland) Regulations 2021 from—
Shirley-Anne Somerville, Cabinet Secretary for Social Security and Older People, Scottish Government;
David George, Disability Benefits Policy Team Leader; Scottish Government;
Kirsten Simonnet-Lefevre, Principal Legal Officer, and David Hilber, Case Transfer Policy Lead, Scottish Government.
2. Subordinate legislation: Shirley-Anne Somerville (Cabinet Secretary for Social Security and Older People) to move—
S5M-24149—That the Social Security Committee recommends that the Disability Assistance for Children and Young People (Scotland) Regulations 2021 [draft] be approved.
3. Subordinate legislation: The Committee will consider the following negative instrument—
The Disability Assistance for Children and Young People (Consequential Amendment and Transitional Provision) (Scotland) Regulations 2021 (SSI 2020/73)
4. Subordinate legislation: The Committee will take evidence on the Social Security Information-sharing (Scotland) Regulations 2021 from—
Shirley-Anne Somerville, Cabinet Secretary for Social Security and Older People, Scottish Government; SSC/S5/21/6/A
Andrew Hiskett, Information Governance Policy Officer; Scottish Government;
Ryan Laurenson, Product Owner; Scottish Government;
Susan Robb, Solicitor, Scottish Government.
5. Subordinate legislation: Shirley-Anne Somerville (Cabinet Secretary for Social Security and Older People) to move—
S5M-24148—That the Social Security Committee recommends that the Social Security Information-sharing (Scotland) Regulations 2021 [draft] be approved.
6. Subordinate legislation: The Committee will take evidence on the Social Security Up-rating (Scotland) Order 2021 and The Social Security (Up-rating) (Miscellaneous Amendment) (Scotland) Regulations 2021 from—
Shirley-Anne Somerville, Cabinet Secretary for Social Security and Older People, Scottish Government;
Camilo Arredondo, Solicitor, Scottish Government;
Vana Anastasiadou, Economic Adviser, Scottish Government;
Veronica Smith, Cross-cutting Policy Adviser, Scottish Government.
7. Subordinate legislation: Shirley-Anne Somerville (Cabinet Secretary for Social Security and Older People) to move—
S5M-24124—That the Social Security Committee recommends that the Social Security Up-rating (Scotland) Order 2021 [draft] be approved.
8. Subordinate legislation: Shirley-Anne Somerville (Cabinet Secretary for Social Security and Older People) to move—
S5M-24125—That the Social Security Committee recommends that the Social Security (Up-rating) (Miscellaneous Amendment) (Scotland) Regulations 2021 [draft] be approved.
9. Social Security response to Covid (in private): The Committee will consider a draft inquiry report. SSC/S5/21/6/A
The papers for this meeting are as follows—
Agenda item 1
Note by the Clerk SSC/S5/21/6/1
SPICe paper SSC/S5/21/6/2
Letters from Cabinet Secretary SSC/S5/21/6/3
Instrument and Policy Note - Disability Assistance for SSC/S5/21/6/4 Children and Young People
Instrument and Policy Note - Disability Assistance SSC/S5/21/6/5 Consequential Amendment and Transitional Provision
Agenda item 4
Note by the Clerk SSC/S5/21/6/6
Letter from Cabinet Secretary SSC/S5/21/6/7
Instrument and Policy Note SSC/S5/21/6/8
Agenda item 6
Note by the Clerk SSC/S5/21/6/9
Letter from Cabinet Secretary SSC/S5/21/6/10
Instruments and Policy Notes SSC/S5/21/6/11
Agenda item 9
PRIVATE PAPER SSC/S5/21/6/12
SSC/S5/21/6/A
Anne Peat Clerk to the Social Security Committee Room T3.60 The Scottish Parliament Edinburgh Tel: 0131 348 5182 Email: [email protected] PAPER 1 SSC/S5/21/6/1
Social Security Committee
6th Meeting, 2021 (Session 5), Thursday 04 March 2021
Subordinate Legislation – Child Disability Payment
Background
1. The Scottish Government laid the following regulations which relate to the introduction of the Child Disability Payment (the Scottish Government’s replacement for Child Disability Living Allowance).
• The Disability Assistance for Children and Young People (Scotland) Regulations 2021
• The Disability Assistance for Children and Young People (Consequential Amendment and Transitional Provision) (Scotland) Regulations 2021 (SSI2021/73)
2. After laying, minor errors in the principal regulations were identified including the wrong rate of payment. The Regulations were withdrawn and re-laid in line with the Cabinet Secretary’s letter of 26 February (attached). As required under the Social Security Scotland Act, SCoSS was required to report on the revised regulations and did so by way of letter (attached). SCoSS did not raise any issues.
3. Today the Committee will consider both instruments. The Cabinet Secretary is attending to move the motion to approve the affirmative instrument. SPICe has prepared a briefing paper and the instrument and policy notes for each instrument are attached.
Affirmative Procedure
4. The Disability Assistance for Children and Young People (Scotland) Regulations 2021 are subject to the affirmative procedure.
Purpose of the Regulations 5. The regulations establish Child Disability Payment (CDP), a new form of social security assistance replacing Disability Living Allowance for children (DLAC) in Scotland. The benefit will support children and young people with a physical or mental disability, or a terminal illness by providing financial assistance to help meet the additional costs associated with care and mobility needs.
6. The benefit will be delivered by Social Security Scotland from 26 July 2021, with initial applications invited from three local authority areas (Perth and Kinross, Dundee and Western Isles). Other areas will follow from 22 November 2021.
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Delegated Powers and Law Reform Committee consideration
7. The DPLR Committee will consider the re-laid instrument at its meeting on 2 March. The Committee’s report will be circulated to Members before Thursday’s meeting.
For Decision
8. Is the Committee content to recommend approval of this instrument?
Negative Procedure
9. The Disability Assistance for Children and Young People (Consequential Amendment and Transitional Provision) (Scotland) Regulations 2021 (SSI 2021/73) are subject to the negative procedure.
Purpose of the Regulations
10. The Scottish Government intends that CDP will be treated in the same way as DLA for devolved ‘passported’ benefits. These Regulations will allow certain passported benefits, exemptions, concessions and reliefs to apply to individuals who are entitled to Child Disability Payment (CDP) so that these individuals are passported to the same benefits, and qualify for the same exemptions, concessions and reliefs, as individuals with an equivalent Disability Living Allowance for children (DLAC) award.
11. The instrument also makes transitional provision to remove the right of individuals, under the age of 16 years, to apply for DLAC if they are able to apply for CDP.
Delegated Powers and Law Reform Committee consideration
12. The DPLR Committee will consider this instrument at its meeting on 2 March. The Committee’s report will be circulated to Members before Thursday’s meeting.
13. Members will want to be aware that amending Regulations will be laid on 5 March to correct an ambiguity in the definition of ‘care home’ in this instrument. Further information can be found in the DPLR Committee papers for 2 March.
For Decision
14. Is the Committee content to note the instrument?
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Social Security Committee
6th Meeting, 2021 (Session 5), Thursday 04 March 2021 Disability Assistance for Children and Young People (Scotland) Regulations 2021 Introduction The Disability Assistance for Children and Young People (Scotland) Regulations 2021 create Child Disability Payment (CDP) which, following a pilot starting in July, is replacing child Disability Living Allowance (cDLA) from November 2021.
The Committee will hear from:
• Shirley-Anne Somerville, Cabinet Secretary, Social Security and Older People; • David George, Disability Benefits Policy Team Leader, Social Security Policy Division • Kirsten Simonnet-Lefevre, Principal Legal Officer, SGLD • David Hilber, Case Transfer Policy Lead, Social Security Policy Division
Last week the Committee heard from the Scottish Campaign on the Right to Social Security (SCORSS). This paper refers to key themes raised at that meeting. The paper for that meeting gave an overview of Child Disability Payment, so this is not repeated here. The following repeats the information on the policy differences between DLA and CDP and the timeline of policy developments, before suggesting seven themes for discussion.
Policy differences between DLA and CDP The Business and regulatory impact assessment (BRIA) sets out the policy differences between cDLA and CDP. The main changes that have been made are: • automatically extending awards of CDP from age 16 to 18 for clients entitled to CDP immediately before reaching age 16; • a new definition of terminal illness that removes time limits • continuing entitlement to the mobility component of CDP while a child or young person is in legal detention; • revising the definition of a severe visual disability for the purposes of entitlement to the higher rate of the mobility component in line with national clinical best practice; • making all awards of CDP rolling, subject to reviews, which take account of how likely it is for an individual’s condition to change over time and continuing entitlement during the review process;
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• extending the time an individual has to request a re-determination from 31 to 42 calendar days; but requiring ‘good reason’ for a late request • Social Security Scotland will have 56 calendar days to complete a re- determination before the individual can appeal a determination to the First-Tier Tribunal for Scotland; and • introducing Short-Term Assistance (STA) which will ‘top up’ an individual’s ongoing award which has been reduced or stopped due to a new determination. This can be applied for during re-determinations or appeals.
Further information on these policy differences is set out in the Equality Impact Assessment.
Policy development • 5 March to 28 May 2019: public consultation on proposals for the delivery of disability assistance including what was then called ‘Disability Assistance for Children and Young People’. • 28 October 2019: Scottish Government response to consultation • 12 December 2019: first draft regulations issued to SCOSS • 7 February 2020: second draft regulations issued to SCOSS • 9 March 2020: First SCOSS scrutiny report with 34 recommendations • March 2020: Social Security Committee session with SCOSS cancelled due to Covid. Questions were answered by correspondence. • 29 July 2020: advice from the Disability and Carer Benefits Expert Advisory Group (DACBEAG) • 28 October 2020: Scottish Government response to DACBEAG • 27 October 2020: third draft regulations published with an explanatory note • SCOSS received written submissions on the initial and revised draft regulations. • 17 December 2020: Second SCOSS scrutiny report making 12 recommendations • 12 February 2021: final draft regulations laid in the Parliament along with impact assessments and response to both SCOSS reports. • 26 February 2021: regulations withdrawn and re-laid to correct technical errors in rate of payment.
The following suggest 7 themes for discussion.
• Theme 1: Case transfer • Theme 2: Incorporation of case law • Theme 3: Time limit for redetermination • Theme 4: Reviews of awards • Theme 5: Transition to Adult Disability Payment • Theme 6: Effective Evaluation • Theme 7: Future changes
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THEME 1: Case transfer from DLA Part 3 of the Schedule makes provision to transfer existing cDLA claimants in Scotland to CDP. Scottish Ministers will select cases for transfer, rather than an individual choosing to be transferred.
At the point of transfer, a person is entitled to the same or higher rate of CDP than they got on cDLA (Schedule paras 9(4) and 11).
The regulations do not set out a priority list but the impact assessments describe how priority will be given to older children (“rising 16’s” - those young people between 16-18 who remain on cDLA instead of being required to apply for PIP) and to those with a terminal illness (EQIA paras 30 and 80).
Last week Ed Pybus (CPAG) raised the issue of how to ensure cases weren’t missed – for example where the parent is in England but the child in Scotland. He queried whether these types of cases would be missed in the transfer process, saying:
“if there’s a lack of clarity about where someone is resident, how will someone in that position get themselves into the transfer process.” (Social Security Committee, 25 February, Ed Pybus, 9.26am).
The Committee may wish to discuss; • What safeguards are there against any mistakes made in the transfer process • How many cases does the Scottish Government propose to select for transfer in the first year of full roll-out
THEME 2: Incorporation of caselaw In the response to the first SCOSS scrutiny report the Scottish Government stated: “The Scottish Government has considered leading case law regarding the interpretation of key terms within the law applicable to DLA in developing the regulations, with a view to avoiding unintentional divergence between DLA and CDP.” (Scottish Government response to SCOSS, February 2021)
Last week witnesses recommended that guidance for decision makers needed to be very clear on interpreting the regulations in line with DLA caselaw. Bill Scott told the Committee that:
“there is still a worry that case law is not written into the regulations, I don’t think. Obviously if guidance to decision makers […] says follow existing caselaw for child DLA, that should avoid a huge number of cases going to appeal.” (Social Security Committee, 25 February, Bill Scott 9.34am)
Ed Pybus said that:
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“they have struck a quite careful balance between where they can succinctly put caselaw in the definitions and, where its not been possible to do that, they have mirrored the language that’s used in the DLA regulations, which certainly suggests that tribunals should follow the caselaw on DLA.” (Social Security Committee, 25 February, Ed Pybus 9.36am)
One example of an apparently small difference that raises questions of interpretation is the difference between the phrases ‘at night’ and ‘throughout the night’. The written submission from CPAG drew attention to differences in the wording:
“For DLA, caselaw has established that 20 minutes is a good starting point when considering if attention given to a child at night is ‘prolonged’ and that ‘repeated’ attention simply means twice or more. The law for DLA (The Social Security Contributions and Benefits Act 1992) simply says “at night” whereas the DACYP regulations use the phrase ‘throughout the night’.”
At Committee last week Bill Scott was concerned that the difference in wording might lead to inconsistency in decision making at tribunals.
“you could find a tribunal in Edinburgh makes one decision, based on the new wording, and another tribunal in Glasgow makes a different decision and neither of them follow the existing caselaw for children’s DLA.” (Social Security Committee, 25 February, Bill Scott, 9.35 am).
The Committee may wish to discuss: • Whether future DLA caselaw decisions will be incorporated into CDP regulations or whether the Scottish Government will rely on solely on guidance to clarify any questions of interpretation that may arise • Whether the difference between ‘at night’ and ‘throughout the night’ is intentional and if not, whether it will be changed to match the DLA wording by amending the regulations early in the new parliamentary session. Alternatively, will the Scottish Government rely on guidance to make clear whether the two phrases should be interpreted in the same way.
THEME 3: Late requests for redetermination If someone is not happy with the decision (determination) about their CDP award they can ask for a redetermination. If they disagree with the result of the redetermination, they can appeal.
The regulations allow 42 days to ask for redetermination, (regulation 37) or up to a year with ‘good reason’ (s.41, Social Security (Scotland) Act 2018).
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In DLA, the time limit for asking for a reconsideration is 31 days. This can be extended to 13 months and CPAGs ‘Welfare Benefits and Tax Credit handbook‘ notes that:
“In practice, decision makers at the DWP rarely refuse to accept a late request for a decision made within the absolute time limit.” (CPAG Handbook ed. 20/21 p.1306)
Ed Pybus told the Committee last week that the CDP provisions give:
“far less of a right than in the UK system where essentially, you can ask for your award to be looked at again at any point in the year after the decision was issued to you whereas in the Scottish system you are going to have to show good reason.” […] We’d call for clear guidance to case managers that all but the most unfounded cases are allowed in.” (Social Security Committee, 25 February, Ed Pybus 9.49am)
The Committee may wish to discuss: • Whether Social Security Scotland guidance will encourage decision makers to be lenient in their judgements of what constitutes ‘good reason’ for a late request for redetermination. In other words, does the Scottish Government expect 12 months to become the ‘de facto’ time limit for asking for redeterminations?
THEME 4: Reviews of awards. The regulations do not include an explicit right to ask for an award to be reviewed. Instead, they require Ministers to make a new determination if Ministers “become aware”:
“of a change of circumstances, whether or not notified by the individual in accordance with s.56 of the 2018 Act, which would possibly result in an alteration” to the award (Regulation 31).
If Ministers decide not to review the case, then there is no right of appeal.
Last week witnesses told that Committee how regulation 31 does not create an unambiguous right to get an award reviewed if a child’s condition worsens. Bill Scott told the Committee that, if a child’s condition deteriorates,
“there should be a right to seek a review of the earlier determination. At the moment, what it says is Scottish Ministers can look at the possibility of whether an increased award would result from a review and that introduces an element of discretion about whether a review would take place or not and all of us think that a review should take place if its requested except in exceptional circumstances where there’s quite obviously been no change.” (Social Security Committee, 25 February, Bill Scott 9.45am)
In their written submission CPAG stated:
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“Guidance should be unambiguous that the bar to a formal determination should be very low (ie only the most obviously irrelevant requests missing out) and any impacts through designing the regulations this way closely monitored.”
CPAG also note that there is no unambiguous right to a review if information is missed. While it might be covered by official error, Ed Pybus told the Committee that:
“we would have preferred to have seen an unambiguous right within the regulations that allowed […] missed information to be looked at later on” (Social Security Committee, 25 February, 9.51am)
Their written submission gives the following example
“A child is entitled to middle rate of the care component of CDP due to requiring attention from another person in connection with her bodily functions. However their carer did not disclose that the child also has a learning difficulty which means they require guidance and supervision when outside and are therefore entitled to the mobility component. There appears to be no way for the award of CDP to increase the award unless this omission is noticed within the re-determination time period1.”
Another issue about regulation 31 is whether it will, in practice, lead to a large number of reviews being carried out, as many things could ‘possibly’ result in an alteration of the CDP award. Ed Pybus told the Committee that:
“there has to be very clear guidance that […] that if an individual reports a change then the review happens but they don’t use [the regulation] as a spurious reason to constantly review people’s cases.” (Social Security Committee, 25 February 9.58am)
The Committee may wish to consider:
• Whether the duty to act on information that could ‘possibly’ lead to a change of award could, in practice, result in frequent reconsiderations of a child’s award in contrast to the broader policy intent of ‘rolling awards’ • Whether guidance will encourage decision makers to accept requests to review an award if a child’s condition has worsened • How guidance will propose decision makers treat new information that comes to light that means the child should have had a higher award
Theme 5: Transitions to Adult Disability Payment
1 For DLA a supersession could be requested that would allow a new decision that would pay a higher award from the date the DWP was informed of the additional facts. 6
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Regulations allow young people who turned 16 after 20 September 2020 to stay on DLA until they are 18. These ‘rising 16s’ are being prioritised for case transfer from DLA to CDP (EQIA).
They will turn 18 from 20 September 2022 onwards. Adult Disability Payment is expected to be available across Scotland from summer 2022, in time for these ‘rising 16s’ to move onto ADP as they turn 18.
The October 2020 draft of the regulations provided for young people to stay on CDP after their 18th birthday if they were waiting for their adult disability award to be decided (draft regulation 18(2)).
The final draft regulations refer neither to ADP nor PIP, and end the CDP award on someone’s 18th birthday (regulation 4).
In their reply to SCOSS, published 12th February, the Scottish Government stated:
“The Scottish Government will set out plans in due course regarding the transition for CDP to ADP. Our overriding priority is to ensure that individuals who are entitled to CDP should experience a smooth transition to ADP upon reaching age 18.”
The Committee may wish to discuss: • What contingency plans are in place in case ADP is delayed and some young people on either cDLA or CDP reach their 18th birthday before ADP is available? • Whether, in order to avoid a ‘cliff edge’ at 18, the Scottish Government will allow young people to th o move from CDP to ADP at any point between their 16 and 18th birthday th o stay on CDP after their 18 birthday until their ADP award is decided
THEME 6: Effective Evaluation The early implementation of CDP may bring to light issues that require changes to administration, regulations or guidance.
The pilot will provide a useful opportunity to test systems, although the full national rollout is due to start the day after the pilot ends (regulation 44).
Witnesses last week emphasised that it was important to collect the right data in order conduct an evidence based review of how CDP is working. Examples given last week include;
• information on who is getting CDP and why claims are refused • Information about whether requests for reviews are being turned down – in order to monitor the way regulation 31 is working (see theme 4)
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A key theme last week was the need for clear guidance for decision makers, particularly where the regulations might be open to interpretation. This raises the issue of whether the balance between what’s in guidance and what’s in regulations ought to be evaluated. Anne Baldock suggested that service users should be involved in evaluating the guidance.
The Scottish Government has announced an independent review of Adult disability payment starting in 2023. Witnesses last week recommended that this should be expanded to include CDP and be based on evidence.
The Scottish Government has said CDP will be evaluated, but it hasn’t specified whether this will include an independent review. In reply to SCOSS the Scottish Government said:
“A full policy evaluation will be carried out considering how the delivery of CDP meets both the policy intent and the needs of the individuals it has been designed to support.” […] “As part of the commitment to continuous improvement and the ‘test and learn’ approach, once delivery of CDP commences, consideration will be given as to whether further revisions to the regulations are required to best meet the needs of clients.” (Scottish Government response to SCOSS, February 2021)
The Committee may wish to discuss: • How will information from the pilot be gathered and used to inform the national roll-out • After national roll-out what kind of monitoring data is Social Security Scotland going to collect on CDP to ensure the rules are being interpreted as expected and the administrative systems are working as expected • How will people in receipt of benefits and other stakeholders be able to contribute to the evaluation of CDP • Will the Scottish Government expand the remit of the independent review of ADP to include CDP • What lessons have been learned from developing CDP that the Scottish Government and Social Security Scotland will apply to forthcoming benefits.
Theme 7: Priorities for change Last week witnesses were asked about their priorities for change, once safe and secure transfer is achieved. Issues raised for consideration included:
• A run-on period after an award is changed to allow people to get used to the change (Ed Pybus, 9.20am) • Whether the ‘past presence’ rules and provisions for people subject to immigration control need to be looked at (Ed Pybus, 9.41am) • Whether the criteria for the higher mobility component meets the needs of children with learning disabilities (Bill Scott, 10.12am) • The wording around night time care (Anne Baldock, 10.15am) 8
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• Consider both the scope and level of benefits, based on evidence gathered during the pilot and roll-out (Ed Pybus 10.19am) • Consider the processes brought in, to compare with the principles in the Charter (Ed Pybus 10.19am) • How to manage any divergence from DWP rules (Ed Pybus, 10.19am)
The Committee may wish to discuss: • Whether the Scottish Government has any priorities for changes to CDP once safe and secure transfer is achieved • Whether there are certain kinds of change that will be more difficult, because of interaction with the reserved benefits system
Camilla Kidner, SPICe 26 February 2021
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PAPER 3 SSC/S5/21/6/3 Cabinet Secretary for Social Security and Older People Shirley-Anne Somerville MSP T: 0300 244 4000 E: [email protected]
Bob Doris MSP Convener Social Security Committee The Scottish Parliament EDINBURGH EH99 1SP
___ 12 February 2020
Dear Convener
I am pleased to inform you that Scottish Ministers have today laid the Disability Assistance for Children and Young People (Scotland) Regulations 2021 and accompanying documents in Parliament. As per section 97 of the Social Security (Scotland) Act 2018, we have also issued a response to the Scottish Commission on Social Security (SCoSS) scrutiny reports of 7 March 2020 and 17 December 2020 on the draft Regulations. A copy of the response is included with this letter.
I am grateful to SCoSS for the constructive way in which they have engaged with us in developing the regulations for Child Disability Payment (CDP), and for both of the scrutiny reports. I believe that these reports show we have been listening carefully to feedback, with a view to ensuring that our replacement for Disability Living Allowance (DLA) for children delivers a safe and secure transition of powers relating to disability benefits.
The Regulations also make provision for the transfer of responsibility for delivering disability benefits for children and young people from DWP to Social Security Scotland, and to transfer these children’s awards to CDP. This will be the first type of recurring disability benefit that we will deliver and our case transfer provisions will ensure that children and young people currently entitled to DLA will continue to receive the right payment, at the right time.
As I noted in my statement to Parliament on 17 November, the impact of Covid-19 upon both the Scottish Government and our delivery partners has been considerable. Despite the considerable challenges, we have continued to engage with our partners to ensure that preparations are underway to deliver a pilot of Child Disability Payment from summer 2021.
This has included work with our partners in the NHS, local authorities, the third sector and with disabled people. I am grateful for the way in which our stakeholders have continued to support our ambition to create a system of disability assistance that has the principles of fairness, dignity and respect at its heart. Scottish Ministers, special advisers and the Permanent Secretary are covered by the terms of the Lobbying (Scotland) Act 2016. See www.lobbying.scot
St Andrew’s House, Regent Road, Edinburgh EH1 3DG www.gov.scot
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We have also laid the Disability Assistance for Children and Young People (Consequential Amendments) (Scotland) Regulations 2021. The main purpose of these Regulations is to make consequential amendments to areas of devolved responsibility because of the introduction of Child Disability Payment. This will ensure that where DLA for children provides access to a particular benefit, disregard or concession, that the equivalent rate of CDP should do the same.
Those Regulations also make provision to ‘switch off’ the ability to apply for DLA for children in our chosen pilot areas initially. They will then subsequently remove the ability to apply for DLA for any child resident elsewhere in Scotland once we begin deliver CDP nationally.
I look forward to appearing before Committee to give evidence on the draft Regulations, in due course.
Yours sincerely
SHIRLEY-ANNE SOMERVILLE
Scottish Ministers, special advisers and the Permanent Secretary are covered by the terms of the Lobbying (Scotland) Act 2016. See www.lobbying.scot
St Andrew’s House, Regent Road, Edinburgh EH1 3DG www.gov.scot PAPER 3 SSC/S5/21/6/3 Cabinet Secretary for Social Security and Older People Shirley-Anne Somerville MSP T: 0300 244 4000 E: [email protected]
Bob Doris MSP Convener Social Security Committee The Scottish Parliament Edinburgh EH99 1SP
25 February 2021
Dear Convener
The draft Disability Assistance for Children and Young People (Scotland) Regulations 2021
I write with reference to the draft Disability Assistance for Children and Young People (Scotland) Regulations 2021 (“the draft Child Disability Payment Regulations”) which were laid in Parliament on 12 February 2021.
It has come to my attention that the provision in draft regulation 23 (amount and form of Child Disability Payment) contain historical rates of payment. To address this error, I intend on withdrawing the the draft Child Disability Payment Regulations and relaying a revised version on 26 February 2021. I enclose this revised version of the regulations with this letter. The changes made are limited to updating the figures in regulation 23 and addressing minor comments made by the Delegated Powers and Law Reform Committee relating to cross- referencing in regulation 5.
I have written today to the Scottish Commission on Social Security to inform them of this intention and to enclose the revised version of the regulations. The Commission has been asked to report on the latest changes in accordance with section 97 of the Social Security (Scotland) Act 2018. The Commission is aware that the regulations will be accompanied by a statement explaining why the Scottish Government is laying the revised regulations in Parliament before the Commission has had an opportunity to report on the latest changes. This must be done to ensure that the draft CDP Regulations provide for the correct rates of Child Disability Payment while maintaining the original coming into force date of 26 July 2021.
Yours sincerely
SHIRLEY-ANNE SOMERVILLE
Scottish Ministers, special advisers and the Permanent Secretary are covered by the terms of the Lobbying (Scotland) Act 2016. See www.lobbying.scot
St Andrew’s House, Regent Road, Edinburgh EH1 3DG www.gov.scot PAPER 3 SSC/S5/21/6/3
Scottish Commission on Social Security c/o Secretariat Area 1C South (Mail Point 6) Victoria Quay Edinburgh EH6 6QQ
1 March 2021
Bob Doris MSP Convener Social Security Committee Scottish Parliament Edinburgh EH99 1SP
Dear Bob,
I am pleased to provide a copy of the Commission’s scrutiny report on the Draft Disability Assistance for Children and Young People (Scotland) Regulations 2021, which has been laid in the Scottish Parliament today under section 97(8)(a)(ii) of the Social Security (Scotland) Act 2018.
SCoSS received a letter on 25 February outlining the Scottish Government’s intention to withdraw the laid draft Disability Assistance for Children and Young People regulations and lay an amended draft before the Parliament. We understand that this was in response to a technical error around the rates of payment of the care and mobility components within the original draft regulations.
Under s.97(4) of the Social Security (Scotland) Act 2018 SCoSS must, on receipt of relevant draft regulations from Scottish Ministers, prepare a report setting out its observations and recommendations on the proposals. We understand that the sole aim of the revised regulations is to correct the stated error and that there are no wider implications. Given this, the SCoSS board has agreed that this letter will suffice as its formal report on the relevant provisions of the draft regulations (SCoSS has already formally and fully reported on previous versions of the draft regulations1).
A copy of the report has been provided to the Cabinet Secretary and will be published on our temporary webpage.
Yours sincerely,
1 The Disability Assistance for Children and Young People (Scotland) Regulations: further scrutiny report on draft regulations - gov.scot (www.gov.scot) PAPER 3 SSC/S5/21/6/3
Dr Sally Witcher OBE Chair Scottish Commission on Social Security Certified copy from legislation.gov.uk Publishing PAPER 4 SSC/S5/21/6/4
These draft Regulations supersede the draft of the same title which was laid before the Scottish Parliament and published on 12 February 2021 (ISBN 978-0-11-104940-2). It is being issued free of charge to all known recipients of those draft Regulations.
Draft Regulations laid before the Scottish Parliament under section 96(2) of the Social Security (Scotland) Act 2018 for approval by resolution of the Scottish Parliament.
DRAFT SCOTTISH STATUTORY INSTRUMENTS
2021 No.
SOCIAL SECURITY
The Disability Assistance for Children and Young People (Scotland) Regulations 2021
Made - - - - 2021 Coming into force - - 26th July 2021
CONTENTS PART 1 Introductory and interpretation
1. Citation and commencement 2. Interpretation - general
PART 2 Disability assistance for children and young people
3. Overview
PART 3 Eligibility
4. Age criteria 5. Residence and presence conditions 6. Interpretation - residence and presence conditions 7. Temporary absence from the common travel area 8. Persons residing in the United Kingdom to whom a relevant EU regulation applies 9. Persons residing outside the United Kingdom to whom a relevant EU regulation applies 10. Entitlement to other benefits 11. Care component criterion: lowest, middle or highest rate care component 12. Mobility requirements: lower rate mobility component 13. Mobility requirements: higher rate mobility component Certified copy from legislation.gov.uk Publishing PAPER 4 SSC/S5/21/6/4
14. Exclusion of entitlement to mobility component
PART 4 Entitlement under special rules for terminal illness and when undergoing dialysis
15. Entitlement under special rules for terminal illness 16. Entitlement to care component when undergoing dialysis
PART 5 Effect of time spent in care homes and in legal detention
17. Effect of admission to a care home on ongoing entitlement to care component 18. Effect of legal detention on ongoing entitlement to care component 19. Calculation of periods of time spent in a care home or in legal detention 20. Entitlement beginning while in alternative accommodation 21. Entitlement to care component of Child Disability Payment while an in-patient
PART 6 Making of applications and payments and duration of eligibility
22. Making payments 23. Amount and form of Child Disability Payment 24. When an application is to be treated as made and beginning of entitlement to assistance 25. Time of payment 26. Continuing eligibility 27. Form of payment – giving Child Disability Payment by way of deduction 28. When an increase in level of entitlement takes effect 29. When a decrease in level or cessation of entitlement takes effect
PART 7 Re-consideration of entitlement to Child Disability Payment: determination without application
30. Consideration of entitlement after specified period 31. Determination following change of circumstances etc. 32. Determination following official error - underpayments 33. Determination following error - overpayments 34. Determination to effect a deduction decision
PART 8 Movement of individuals between Scotland and the rest of the United Kingdom
35. Individuals in respect of whom Disability Living Allowance is paid in another part of the United Kingdom immediately before moving to Scotland 36. Individuals in respect of whom Child Disability Payment is paid at the time of moving to another part of the United Kingdom
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PART 9 Periods in respect of a re-determination request
37. Periods in respect of a re-determination request
PART 10 Provision of vehicles
38. Payment of mobility component to authorised providers of vehicles for individuals with disabilities 39. Vehicles for persons with disabilities – powers of appointees
PART 11 Initial period for applications
40. Initial period for applications
PART 12 Transfer to Child Disability Payment
41. Transfer to Child Disability Payment
PART 13 Short-term assistance
42. Entitlement to short-term assistance
PART 14 Consequential amendment
43. Consequential amendment
PART 15 Transitory provision
44. Transitory provision – initial period for applications 45. Exclusion to transitory provision
SCHEDULE PART 1 — Short-term assistance PART 2 — Initial period for applications PART 3 — Transfer to Child Disability Payment PART 4 — Consequential amendment
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The Scottish Ministers make the following Regulations in exercise of the powers conferred by sections 31(2), 36(2), 41(4)(a), 43(5), 51(1), 52 and 95 of the Social Security (Scotland) Act 2018(a) and all other powers enabling them to do so.
In accordance with section 96(2) of that Act, a draft of these Regulations has been laid before and approved by resolution of the Scottish Parliament.
In accordance with section 97(2) of that Act, the Scottish Ministers have informed the Scottish Commission on Social Security of their proposals, notified the Scottish Parliament that they have done so and made their proposals publicly available by such means as they consider appropriate.
PART 1 Introductory and interpretation
Citation and commencement 1. These Regulations may be cited as the Disability Assistance for Children and Young People (Scotland) Regulations 2021 and come into force on 26 July 2021.
Interpretation - general 2. In these Regulations— “the 2018 Act” means the Social Security (Scotland) Act 2018, “armed forces independence payment” means the disability benefit paid in accordance with article 24A of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011(b), “authorised provider of vehicles” means a supplier of vehicles for persons with disabilities approved under an accreditation scheme run by the Scottish Ministers, “award” means that a determination has been made that an individual is entitled to be given assistance under section 24 of the 2018 Act in accordance with these Regulations, and cognate expressions are to be construed accordingly, “bodily functions” means the normal actions of any organ of the body, including the brain, or of a number of organs acting together, “care component” means the care component of Child Disability Payment within the meaning of regulation 11, “care home” means an establishment which provides a care home service as defined in paragraph 2 of schedule 12 of the Public Services Reform (Scotland) Act 2010(c) and includes a residential educational establishment, “Child Disability Payment” means disability assistance for children and young people given in accordance with section 31 of the 2018 Act, “determination” or “determination of entitlement” has the meaning in section 25 of the 2018 Act, “Disability Living Allowance” means a disability living allowance under— (a) section 71 of the Social Security Contributions and Benefits Act 1992(d), or
(a) 2018 asp 9 (“the 2018 Act”). Schedules 5 and 10 of the 2018 Act, respectively make provision about the exercise of powers under sections 31 and 36. The powers to make these Regulations are exercised together by virtue of section 33(2) of the Interpretation and Legislative Reform (Scotland) Act 2010 (asp 10) and the Regulations are subject to the affirmative procedure by virtue of section 33(3) of that Act. (b) S.I. 2011/517, amended by S.I. 2013/436, S.I. 2017/247 and S.I. 2020/213. (c) 2010 asp 8. (d) 1992 c.4. Section 71 was amended by section 67(1) of the Welfare Reform and Pensions Act 1999 (c.30).
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(b) section 71 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992(a), “EEA State” means— (a) any member state of the European Union, or (b) any other state that is party to the agreement on the European Economic Area signed at Oporto on 2 May 1992(b), together with the Protocol adjusting that Agreement signed at Brussels on 17 March 1993(c), as modified or supplemented from time to time, “hospice” means a hospital or other institution whose primary function is to provide palliative care for persons resident there who are suffering from a progressive disease in its final stages other than— (a) a health service hospital (within the meaning of section 108(1) of the National Health Service (Scotland) Act 1978(d)) in Scotland, (b) a health service hospital (within the meaning of section 275(1) of the National Health Service Act 2006(e)) in England, (c) a hospital in Wales vested in— (i) an NHS trust, (ii) a Local Health Board, or (iii) the Welsh Ministers, for the purpose of functions under the National Health Service (Wales) Act 2006(f), (d) a hospital maintained or administered by the Defence Council(g), or (e) an institution similar to a hospital mentioned in any of the preceding paragraphs, “legal detention” means detention in legal custody within the meaning of section 295 of the Criminal Procedure (Scotland) Act 1995(h) but does not include detention under— (a) section 59A(i) of that Act, or (b) section 136 of the Mental Health (Care and Treatment) (Scotland) Act 2003(j), or (c) section 45A, 47 or 50(3) of the Mental Health Act 1983(k), “mobility component” means the mobility component of Child Disability Payment within the meaning of regulations 12 and 13, “personal independence payment” means personal independence payment under— (a) Part 4 of the Welfare Reform Act 2012(l), or (b) article 82 of the Welfare Reform (Northern Ireland) Order 2015(m), “qualifying services” means accommodation, board and personal care,
(a) 1992 c.7. Section 71 was amended by S.I. 1999/3147. (b) Command Paper 2073 and OJ L 1, 3.1.1994, p.3. (c) Command Paper 2183 and OJ L 1, 3.1.1994, p.572. (d) 1978 c.29. Section 108(1) was relevantly amended by paragraph 6(a) of schedule 6 of the Health Services Act 1980 (c.53) and paragraph 19(22)(b) of schedule 9 of the National Health Service and Community Care Act 1990 (c.19). (e) 2006 c.41. Section 275 was relevantly amended by paragraph 138(2)(b) of schedule 4(12) of the Health and Social Care Act 2012 (c.7). (f) 2006 c.42. (g) The Defence Council was established by section 1 of the Defence (Transfer of Functions) Act 1964 (c.15). (h) 1995 c.46. Section 295 was amended by section 24(2) of the Criminal Justice (Scotland) Act 2003 (asp 7). (i) Section 59A was inserted by section 6(1) of the Crime and Punishment (Scotland) Act 1997 (c.48) and amended by paragraph 8(6) of schedule 4 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) and section 44(2) of the Mental Health (Scotland) Act 2015 (asp 9). (j) 2003 asp 13, amended by sections 12(2) and 34(2) of the Mental Health (Scotland) Act 2015 (asp 9). (k) 1983 c.20, relevantly amended by section 46 and paragraph 1 of schedule 6 of the Crime (Sentences) Act 1997 (c.43), section 294(3) and paragraph 1 of schedule 37(7) of the Criminal Justice Act 2003 (c.44) and section 10(8), paragraph 18 of schedule 10 of the Domestic Violence, Crime and Victims Act 2004 (c.28), paragraph 97 of schedule 16 of the Armed Forces Act 2006 (c.52) and paragraph 2 of schedule 10 and paragraph 1 of schedule 11(1) of the Mental Health Act 2007 (c.12). (l) 2012 c.5. (m) S.I. 2015/2006.
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“relevant EU Regulation” means— (a) one of the following Regulations— (i) Council Regulation (EC) No 1408/71 of 14 June 1971(a) on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, (ii) Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004(b) on the coordination of social security systems, or (b) in relation to an individual to whom the agreement constituted by the exchange of letters set out in the schedule of the Family Allowances, National Insurance and Industrial Injuries (Gibraltar) Order 1974(c) applies, a Regulation mentioned in paragraph (a) of this definition as it forms part of domestic law by virtue of section 3 of the European Union (Withdrawal) Act 2018(d), “residential educational establishment” means a care home which provides education or training except for one where the costs of any qualifying services are borne wholly or partly out of public or local funds by virtue of— (a) section 485 of the Education Act 1996(e), section 14 of the Education Act 2002(f) or section 73 of the Education (Scotland) Act 1980(g) (which relate to grants in aid of educational services), (b) sections 49(h) or 73 of the Education (Scotland) Act 1980 (which relate respectively to the power of education authorities to assist persons to take advantage of educational facilities and the powers of the Secretary of State to make grants to education authorities and others), (c) section 65(i) of the Further and Higher Education Act 1992, sections 39 or 40 of the Higher Education and Research Act 2017(j) or sections 4 or 11 of the Further and Higher Education (Scotland) Act 2005(k) (which relate respectively to the funding of further education and the administration of funds), or (d) section 22 of the Teaching and Higher Education Act 1998(l), “transferring individual” has the meaning set out in paragraph 7 of the schedule, and “week” means a period of 7 days.
(a) OJ L 28, 30.1.1997, p.1. (b) OJ L 166, 30.4.2004, p.1. (c) S.I. 1974/555 (d) 2018 c.16, relevantly amended by section 25(2) of European Union (Withdrawal Agreement) Act 2020 (c.1). (e) 1996 c.56, amended by S.I. 2010/1158. (f) 2002 c.32, amended by section 59(2), (3) and (4) of the Children Act 2004 (c.31), paragraph 23(2) and (3) of schedule 14 of Education Act 2005 (c.18), section 15(2)(a) and (b) of the Education Act 2011 (c.21), S.I. 2010/1158 and S.I. 2019/1027. (g) 1980 c.44, amended by section 73 of the Self-Governing Schools etc. (Scotland) Act 1989 (c.39) and section 3(2) of the Education (Graduate Endowment and Student Support) (Scotland) Act 2001 (asp 6). (h) Section 49 was amended by paragraph 8(9) of schedule 10 of the Self-Governing Schools etc. (Scotland) Act 1989 (c.39) and section 5(1) of the Schools (Health Promotion and Nutrition) (Scotland) Act 2007 (asp 15). (i) 1992 c.13, amended by section 27 of the Teaching and Higher Education Act 1998 (c.30), section 34(1) of the Special Educational Needs and Disability Act 2001 (c.10), paragraph 15 of schedule 11 of the Higher Education and Research Act 2017 (c.29) and S.I. 2010/1158. (j) 2017 c.29. (k) 2005 asp 6. Sections 4 and 11 were amended by paragraph 8 of schedule 1 of the Post-16 Education (Scotland) Act 2013 (asp 12). (l) 1998 c.30, amended by section 146 and paragraph 1 of schedule 11 of the Learning and Skills Act 2000 (c.21), paragraph 236 of schedule 6 of the Income Tax (Earnings and Pensions) Act 2003 (c.1), section 147 of the Finance Act 2003 (c.14), sections 42 and 43 and paragraph 1 of schedule 7 of the Higher Education Act 2004 (c.8), section 257 of the Apprenticeships, Skills, Children and Learning Act 2009 (c.22), section 76 of the Education Act 2011 (c.21), and section 88 of the Higher Education and Research Act 2017 (c.29) and S.I. 2013/1881.
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PART 2 Disability assistance for children and young people
Overview 3.—(1) An individual is entitled to Child Disability Payment in accordance with these Regulations if they meet the eligibility rules in— (a) regulation 4 (age criteria), (b) regulations 5 to 9 (residence and presence conditions, etc.), (c) regulation 10 (entitlement to other benefits), (d) one or more of the following— (i) regulation 11 (care component criterion: lowest, middle and highest rate of care component), (ii) regulation 12 (mobility requirements: lower rate mobility component), (iii) regulation 13 (mobility requirements: higher rate mobility component), (iv) regulation 15 (entitlement under special rules for terminal illness), (v) regulation 16 (entitlement to care component when undergoing dialysis). (2) Child Disability Payment is to consist of a care component and a mobility component. (3) There are 3 weekly rates of the care component and 2 weekly rates of the mobility component and those rates are specified in regulation 23 (amount and form of Child Disability Payment).
PART 3 Eligibility
Age criteria 4.—(1) Subject to regulation 15 (entitlement under special rules for terminal illness), Child Disability Payment may be paid in respect of an individual who is aged at least 3 months and is under the age of 18 years. (2) Child Disability Payment may only be paid in respect of an individual who is under the age of 16 years on the day on which entitlement begins in accordance with regulation 24 (when an application is to be treated as made and beginning of entitlement to assistance). (3) Where an individual was born on 29 February, the individual’s birthday is to be taken to fall on 28 February in a year which is not a leap year.
Residence and presence conditions 5.—(1) An individual satisfies the residence and presence conditions where on any day that individual— (a) is ordinarily resident in Scotland, (b) is habitually resident in the common travel area, (c) is not a person to whom section 115(3) of the Immigration and Asylum Act 1999(a) applies, within the meaning of section 115(9) of that Act for the purposes of entitlement to Child Disability Payment, (d) is present in the common travel area, and
(a) 1999 c.33.
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(e) has been present in the common travel area for a period of, or for periods amounting in the aggregate to, not less than 26 weeks in the 52 weeks immediately preceding that day. (2) In the case of a child under the age of 6 months, paragraph (1) is to apply as if in sub- paragraph (e) for the reference to 26 weeks there was substituted a reference to 13 weeks. (3) Where in any particular case a child has by virtue of paragraph (2) entitlement to the care component immediately before the day the child attains the age of 6 months, then until the child attains the age of 12 months, paragraph (1)(e) shall continue to apply in that child’s case as if for the reference to 26 weeks there was substituted a reference to 13 weeks. (4) The residence condition set out in paragraph (1)(a) does not apply in relation to the care component where on any day the individual— (a) is habitually resident in Ireland, (b) has a genuine and sufficient link to Scotland, and (c) is an individual— (i) to whom the Convention on Social Security between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland signed at Dublin on 1 February 2019(a), as modified from time to time in accordance with any provision of it, applies, and (ii) in respect of whom the United Kingdom is, as a result, competent for payment of long term care benefits. (5) The reference in paragraph (4)(b) to an individual’s link to Scotland being sufficient is to it being sufficiently close that if the individual were not entitled to Child Disability Payment, paragraph (4) would be incompatible with Convention on Social Security between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland signed at Dublin on 1 February 2019. (6) A relevant individual is treated as satisfying the residence and presence conditions set out in paragraph (1)(a), (b), (d) and (e) where on any day that individual is outside the common travel area— (a) by reason of their capacity mentioned in paragraph (7)(b) provided that individual satisfied the residence and presence conditions set out in paragraph (1)(a), (b), (d) and (e) immediately prior to the start of their employment mentioned in paragraph (7)(b), or (b) by reason of being a person mentioned in paragraph (7)(a) living with an individual to whom sub-paragraph (a) applies. (7) A “relevant individual” in paragraph (6) means an individual who is— (a) living with a person mentioned in sub-paragraph (b) and— (i) is the child, step-child or a child in care of that person, or (ii) is married to or in a civil partnership with that person, or is living together with that person as if they were married or in a civil partnership, or (b) outside the common travel area in their capacity as a— (i) serving member of Her Majesty’s forces, or (ii) civil servant. (8) An individual is to be treated as meeting the presence conditions set out in paragraphs (1)(d) and (e) for any period where that individual is— (a) outside the common travel area in their capacity as an aircraft worker or mariner, or
(a) 2019 CP 49.
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(b) in employment prescribed for the purposes of section 120 (employment at sea (continental shelf operations)) of the Social Security Contributions and Benefits Act 1992(a) in connection with continental shelf operations. (9) Where an individual— (a) does not meet the presence condition set out in paragraph (1)(d) on the date the application is received by the Scottish Ministers, and (b) appears to the Scottish Ministers likely to meet that condition, unless there is a change of circumstances, on a date not later than 3 months after the application was received, the Scottish Ministers may choose the date within that 3 month period on which the application is to be treated as being made. (10) The past presence condition in paragraph (1)(e) does not apply where an individual— (a) has a terminal illness within the meaning of regulation 15, or (b) has— (i) been granted refugee status or humanitarian protection under the immigration rules, or (ii) leave to enter or remain in the United Kingdom as the dependant of a person granted refugee status or humanitarian protection under the immigration rules. (11) For the purpose of paragraph (10)(b) “immigration rules” means the rules laid before the United Kingdom Parliament under section 3(2) of the Immigration Act 1971(b).
Interpretation - residence and presence conditions 6. In regulation 5— “aircraft worker” means a person who is, or has been, employed under a contract of service either as a pilot, commander, navigator or other member of the crew of any aircraft, or in any other capacity on board any aircraft where— (a) the employment in that other capacity is for the purposes of the aircraft or its crew or of any passengers or cargo or mails carried on that aircraft, and (b) the contract is entered into in the United Kingdom with a view to its performance (in whole or in part) while the aircraft is in flight, but does not include a person in so far as that employment is as a serving member of Her Majesty’s forces, “child in care” means— (a) under the law of Scotland, a child in respect of whom a relevant individual listed in regulation 5(7)(a)— (i) is a foster carer within the meaning of regulation 2 of the Looked After Children (Scotland) Regulations 2009(c), (ii) is a kinship carer within the meaning of regulation 2 of the Looked After Children (Scotland) Regulations 2009, (iii) has a kinship care order within the meaning of section 72 of the Children and Young People (Scotland) Act 2014(d), or
(a) 1992 c.4, relevantly amended by paragraph 26(a) and (b) of schedule 3 and paragraph 8 of schedule 7 of the Social Security Contributions (Transfer of Functions, etc.) Act 1999 (c.2), paragraph 70 of schedule 7 of the Social Security Act 1998 (c.14), section 12(2) to (4) of the National Insurance Contributions Act 2014 (c.7) and paragraph 30 of schedule 4 of the Petroleum Act 1998 (c.17). (b) 1971 c.77. (c) S.S.I. 2009/210. (d) 2014 asp 8.
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(b) under the law of England and Wales and Northern Ireland, a child in respect of whom a person listed in regulation 5(7)(a) has a relationship equivalent to those listed in paragraph (a) under the law of Scotland, “civil partnership” is to be read as including a reference to marriage of a same sex couple and a reference to civil partners or to a person who is in a civil partnership is to be construed accordingly, “civil servant” has the meaning given by section 1(4) of the Constitutional Reform and Governance Act 2010(a), “common travel area” has the meaning given in section 1(3) of the Immigration Act 1971, “mariner” means a person who is, or has been, in employment under a contract of service either as a master or member of the crew of any ship or vessel, or in any other capacity on board any ship or vessel where— (a) the employment in that other capacity is for the purposes of that ship or vessel or its crew or any passengers or cargo or mails carried by the ship or vessel, and (b) the contract is entered into in the United Kingdom with a view to its performance (in whole or in part) while the ship or vessel is on its voyage, but does not include a person in so far as that employment is as a serving member of Her Majesty’s forces, “person who is living with another person as if they were in a civil partnership” is to be read as including a reference to a person who is living with another person of the same sex as if they were married, and “serving member of Her Majesty’s forces” means a member of a regular force or reserve force (“M”) as defined, in each case, by section 374 (definitions applying for purposes of the whole Act) of the Armed Forces Act 2006(b), unless— (a) M is under the age of 16, (b) M is committing an offence under section 8 of the Armed Forces Act 2006 (desertion), (c) the force concerned is one of Her Majesty’s naval forces which M locally entered at an overseas base without previously being— (i) an insured person under the National Insurance Act 1965(c), or (ii) a contributor under the Act, or (d) the force concerned is one of Her Majesty’s military forces or Her Majesty’s air forces which M entered, or was recruited for, outside the United Kingdom and— (i) where that force is one of Her Majesty’s military forces, the depot for M’s unit is outside the United Kingdom, or (ii) where that force is one of Her Majesty’s air forces, M is liable under the terms of M’s engagement to serve only in a specified area outside the United Kingdom.
Temporary absence from the common travel area 7.—(1) Where an individual is temporarily absent from the common travel area, the individual is to be treated as present in the common travel area for— (a) the first 13 weeks of that absence for any reason, or (b) the first 26 weeks of that absence where— (i) after the first 13 weeks, the absence is in connection with arrangements made for the medical treatment of the individual for a disease or bodily or mental disablement which commenced before leaving the common travel area, and
(a) 2010 c.25. (b) 2006 c.52. (c) 1965 c.51.
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(ii) the arrangements relate to medical treatment— (aa) outside the common travel area, (bb) during the period when the individual is temporarily absent from the common travel area, and (cc) by, or under the supervision of, a person appropriately qualified to carry out that treatment. (2) For the purposes of paragraph (1)— (a) an individual is “temporarily absent” if, at the beginning of the period of absence, that absence is unlikely to exceed 52 weeks, and (b) “medical treatment” means medical, surgical, psychological or rehabilitative treatment (including any course, diet or regimen).
Persons residing in the United Kingdom to whom a relevant EU regulation applies 8. The past presence condition set out in regulation 5(1)(e) does not apply where on any day the individual is— (a) ordinarily resident in Scotland, (b) habitually resident in the United Kingdom, (c) an individual— (i) to whom the rules set out in a relevant EU regulation applies by virtue of— (aa) Title III of Part 2 of the EU withdrawal agreement, (bb) Part 3 or Article 23(4) of the Swiss citizens’ rights agreement (as defined in section 39(1) of the European Union (Withdrawal Agreement) Act 2020) (“the 2020 Act”))(a), (cc) Title III of the EEA EFTA separation agreement (as defined in section 39(1) of the 2020 Act), or (dd) the agreement constituted by the exchange of letters set out in the schedule of the Family Allowances, National Insurance and Industrial Injuries (Gibraltar) Order 1974(b), (ii) in respect of whom the United Kingdom is, as a result, competent for payment of sickness benefits in cash.
Persons residing outside the United Kingdom to whom a relevant EU regulation applies 9.—(1) The residence and presence conditions set out in regulation 5(1) do not apply in relation to the care component where on any day the individual satisfies the conditions in paragraph (2). (2) The conditions referred to in paragraph (1) are that the individual must— (a) be an individual— (i) to whom the rules set out in a relevant EU regulation apply by virtue of— (aa) Title III of Part 2 of the EU withdrawal agreement, (bb) Part 3 or Article 23(4) of the Swiss citizens’ rights agreement (as defined in section 39(1) of the European Union (Withdrawal Agreement) Act 2020 (“the 2020 Act”)), (cc) Title III of the EEA EFTA separation agreement (as defined in section 39(1) of the 2020 Act), or
(a) 2020 c.1. (b) S.I. 1974/555.
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(dd) the agreement constituted by the exchange of letters set out in the schedule of the Family Allowances, National Insurance and Industrial Injuries (Gibraltar) Order 1974, and (ii) in respect of whom the United Kingdom is, as a result, competent for payment of sickness benefits in cash, (b) be habitually resident in— (i) Switzerland, (ii) an EEA state, or (iii) Gibraltar, and (c) have a genuine and sufficient link to Scotland. (3) The reference in paragraph (2)(c) to an individual’s link to Scotland being sufficient is to it being sufficiently close that if the individual were not entitled to Child Disability Payment, paragraph (2) would be incompatible with the applicable agreement mentioned in sub-paragraph (a)(i) of that paragraph.
Entitlement to other benefits 10. An individual is not entitled to Child Disability Payment while they are entitled to— (a) Disability Living Allowance, (b) Personal Independence Payment, or (c) armed forces independence payment.
Care component criterion: lowest, middle or highest rate care component 11.—(1) An individual satisfies the care component criterion in respect of any period throughout which at least one of the following conditions is satisfied— (a) the individual is so severely disabled physically or mentally that they require in connection with their bodily functions attention from another person for a significant portion of the day (whether during a single period or a number of periods), (b) the individual is 16 years old or older and is so severely disabled physically or mentally that they cannot prepare a cooked main meal for themselves if they have the ingredients, (c) the individual is so severely disabled physically or mentally that they require from another person— (i) frequent attention throughout the day in connection with their bodily functions, or (ii) continual supervision throughout the day in order to avoid substantial danger to the individual or others, or (d) the individual is so severely disabled physically or mentally that they require— (i) prolonged or repeated attention from another person throughout the night in connection with their bodily functions, or (ii) another person to be awake for a prolonged period or at frequent intervals for the purpose of watching over the individual throughout the night in order to avoid substantial danger to the individual or others. (2) No condition mentioned in paragraph (1) is to be taken to be satisfied unless— (a) the individual has requirements of a description mentioned in the condition substantially in excess of the normal requirements of a person of the same age, or (b) the individual has substantial requirements of such a description which younger persons in normal physical and mental health may also have but which persons of the individual’s age and in normal physical and mental health would not have.
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(3) An individual is not entitled to the care component unless— (a) throughout the period of 13 weeks immediately preceding the date on which the award of that component would begin, the individual has satisfied or is likely to satisfy at least one of the conditions mentioned in paragraph (1) as read with paragraph (2), and (b) the individual is likely to continue to satisfy at least one of those conditions throughout the period of 26 weeks beginning with that date. (4) In the case of an individual who is under the age of 16 on the date on which the award of the care component would begin, paragraph (2) only applies in relation to so much of any period mentioned in that paragraph as falls before the day on which the individual reaches the age of 16. (5) The amount of the care component that an individual is entitled to be given for each week in the period for which they are awarded that component is— (a) the highest rate (see regulation 23(1)(a)), if the individual falls within paragraph (3) by virtue of having satisfied or being likely to satisfy both the conditions mentioned in paragraph (1)(c) and (d) above throughout both the period mentioned in paragraph (3)(a) and that mentioned in paragraph (3)(b), (b) the middle rate (see regulation 23(1)(b)), if the individual falls within paragraph (3) by virtue of having satisfied or being likely to satisfy one of those conditions mentioned in paragraph (1)(c) or (d) throughout both those periods, and (c) the lowest rate (see regulation 23(1)(c)) in any other case. (6) In paragraph (1)— (a) references to “day” and “night” are to be construed in relation to the ordinary domestic routine of the household in which the individual lives, and (b) “attention” means the provision of personal care, prompting or motivation in relation to bodily functions or assistance with communication needs. (7) In paragraph (1) and regulation 12, “supervision” means the precautionary or anticipatory presence of another person to monitor an individual’s physical, mental or emotional health including monitoring for obstacles or dangerous places or situations. (8) In this regulation and regulations 12 and 13, “require” means reasonably require and cognate expressions are to be construed accordingly.
Mobility requirements: lower rate mobility component 12.—(1) An individual aged 5 years or more is entitled to be given the mobility component at the lower rate (see regulation 23(2)(b)) if the individual satisfies the condition set out in paragraph (2). (2) The condition referred to in paragraph (1) is that the individual, though able to walk, cannot move around outdoors without requiring guidance or supervision from another person most of the time as a result of a physical or mental impairment. (3) The guidance or supervision required must be— (a) substantially in excess of the normal requirements of a person of the same age, or (b) of such a description which younger persons in normal physical and mental health may also require but which persons of the individual’s age and in normal physical and mental health would not require. (4) In the case of an individual who is under the age of 16 on the date on which the award of the mobility component would begin, paragraph (3) only applies in relation to so much of any period mentioned in that paragraph as falls before the day on which the individual reaches the age of 16. (5) Whether the individual satisfies the condition in paragraph (2), no account is to be taken of any ability which the individual has to use routes with which they are familiar, without guidance or supervision from another person.
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(6) An individual is not entitled to the lower rate of the mobility component unless— (a) throughout the period of 13 weeks immediately preceding the date on which the award of that component would begin, the individual has satisfied or is likely to satisfy the condition mentioned in paragraph (2), and (b) the individual is likely to continue to satisfy the condition mentioned in paragraph (2) throughout the period of 26 weeks beginning with that date. (7) In this regulation, “guidance” means direction or leading by physical means or verbal suggestion or persuasion.
Mobility requirements: higher rate mobility component 13.—(1) An individual aged 3 years or more is entitled to be given the mobility component at the higher rate (see regulation 23(2)(a)) if the individual satisfies at least one of the conditions mentioned in paragraph (2). (2) The conditions referred to in paragraph (1) are— (a) taking account of the individual’s physical condition as a whole, the individual’s condition is such that, without having regard to the nature of the location where the individual resides— (i) the individual is unable to walk, (ii) the individual’s ability to walk out of doors is so limited, as regards the distance over which or the speed at which or the length of time for which or the manner in which the individual can make progress on foot without severe discomfort, that the individual is virtually unable to walk, or (iii) the exertion required to walk would constitute a danger to the individual’s life, or would be likely to lead to a serious deterioration in the individual’s health, from which there would no recovery, or from which recovery would take a significant period of time, (b) the individual has no legs or no feet (regardless of the use of artificial limbs), (c) the individual has a severe visual impairment, (d) the individual is blind and deaf, (e) the individual has a severe mental impairment and severe behavioural difficulties and satisfies both of the conditions mentioned in regulation 11(1)(c) and (d). (3) Where paragraph (2)(a) applies in relation to an individual, the test of being unable or virtually unable to walk is not met where the individual— (a) is not unable or virtually unable to walk with the use of an artificial limb or artificial aid which the individual normally wears or uses, or (b) would not be unable or virtually unable to walk if the individual wore or used an artificial limb or artificial aid which is suitable to the individual’s circumstances. (4) Paragraph (3) is not relevant for the purpose of determining whether an individual is to be taken to satisfy the conditions set out in paragraphs (2)(b) to (e). (5) An individual is to be taken to have a severe visual impairment, for the purpose of paragraph (2)(c), if the individual has a severe visual impairment fulfilling the definition given by the Visual Impairment Network for Children and Young People(a). (6) An individual is taken to be blind and deaf, for the purpose of paragraph (2)(d), if the individual is— (a) blind where the loss of vision amounts to an absolute loss of vision,
(a) A National Managed Clinical Network forming part of NHS Scotland https://www.vincyp.scot.nhs.uk/vincyp-definition/.
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(b) deaf where loss of hearing when using any artificial aid which they habitually use or which is suitable in their case amounts to not less than 80% on a scale where 100% represents absolute deafness, and (c) unable, without the assistance of another person, to walk to any intended or required destination while out of doors. (7) An individual is to be taken to have a severe mental impairment, for the purpose of paragraph (2)(e), if the individual has a severe impairment of intelligence and social functioning resulting from— (a) a state of arrested development as a result of a failure of the individual’s brain to grow or develop in the way normally expected, or (b) a deficiency in the functionality of the brain as a result of its incomplete physical development. (8) An individual is to be taken to have severe behavioural difficulties, for the purpose of paragraph (2)(e), if the individual exhibits disruptive behaviour which— (a) is extreme, (b) regularly requires another person to intervene in order to prevent or reduce the likelihood of physical injury to the individual or another person, and (c) is so unpredictable that another person requires to be awake and watching over the individual while the individual is awake. (9) In paragraph (8)(b), reference to another person intervening relates to the provision of care and support of, or treatment provided to, the individual. (10) An individual is not entitled to the mobility component unless— (a) throughout the period of 13 weeks immediately preceding the date on which the award of that component would begin, the individual has satisfied or is likely to satisfy one of the conditions mentioned in paragraph (2), and (b) the individual is likely to continue to satisfy one of those conditions throughout the period of 26 weeks beginning with that date.
Exclusion of entitlement to mobility component 14. An individual is not entitled to the mobility component of Child Disability Payment for a period unless, during most of that period, the individual’s physical or mental condition is such that they are able, from time to time, to benefit from assistance for movement.
PART 4 Entitlement under special rules for terminal illness and when undergoing dialysis
Entitlement under special rules for terminal illness 15.—(1) An individual who has a terminal illness is— (a) to be treated as satisfying the conditions for the highest rate of the care component of Child Disability Payment in regulation 11(5)(a), and (b) from the date on which the individual reaches the age of 3, to be treated as satisfying the conditions for the higher rate of the mobility component in regulation 13. (2) Paragraph (1) applies regardless of— (a) the period of time for which the individual has had the terminal illness, and (b) any period of time spent by the individual in a hospital or hospice while in receipt of the assistance.
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(3) Subject to paragraphs (4) and (5), the individual’s entitlement to the rates referred to in paragraph (1) begins on the date on which— (a) the individual’s application for Child Disability Payment was made, where the application included information about the individual’s terminal illness, (b) the Scottish Ministers became aware of the individual’s terminal illness (whether as a result of the individual notifying a change in circumstances or otherwise), where the individual was previously awarded, and has an ongoing entitlement to, Child Disability Payment, on the basis of a determination that the individual was entitled to the care component or the mobility component or both in relation to a condition other than terminal illness, or (c) the clinical judgement was made in accordance with paragraphs (6) and (7) (“the judgement”), whichever is the earlier. (4) Where the judgement mentioned in paragraph (3)(c) is dated not more than 26 weeks earlier than whichever date in paragraph (3)(a) or (b) applies (“the relevant date”), the Scottish Ministers have the power, when making their determination, to specify that an individual’s entitlement begins— (a) up to a maximum of 26 weeks prior to the relevant date, and (b) on or after the day these Regulations come into force. (5) Where the judgement mentioned in paragraph (3)(c)— (a) is dated more than 26 weeks earlier than whichever date in paragraph (3)(a) or (b) applies (“the relevant date”), and (b) an appropriate healthcare professional confirms that the judgement is still accurate by making a judgement in accordance with paragraphs (6) and (7), an individual’s entitlement can only begin— (c) up to a maximum of 26 weeks prior to the relevant date, and (d) on or after the day these Regulations come into force. (6) For the purpose of this regulation, an individual is to be regarded as having a terminal illness for the purpose of determining entitlement to Child Disability Payment if it is the judgement of an appropriate healthcare professional that the individual has a progressive disease that can reasonably be expected to cause the individual’s death. (7) Subject to paragraph (8), an appropriate healthcare professional exercising the judgement described in paragraph (6) must have regard to the guidance prepared and made publicly available by the Chief Medical Officer of the Scottish Administration in accordance with paragraph 1(3) of schedule 5 of the 2018 Act. (8) Where regulation 9 (persons residing outside the United Kingdom to whom a relevant EU regulation applies) applies to the individual, an appropriate healthcare professional mentioned in paragraph (9)(b) need not have regard to the guidance mentioned in paragraph (7) where it would not be reasonable in the circumstances to insist on the judgement being formed with regard to that guidance. (9) In this regulation, “an appropriate healthcare professional” means— (a) a registered medical practitioner or a registered nurse who is— (i) involved in the diagnosis or care of the individual, and (ii) acting in their professional capacity, or (b) where regulation 9 applies to the individual, a person who— (i) has equivalent qualifications to a registered medical practitioner or a registered nurse in an EEA state, Gibraltar or Switzerland, (ii) is a member of the professional body equivalent to the General Medical Council or Nursing and Midwifery Council in that EEA state, Gibraltar or Switzerland, and
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(iii) meets the requirements of sub-paragraph (a)(i) and (ii). (10) Where an individual has received Child Disability Payment for a period and a determination is subsequently made that that individual is entitled to Child Disability Payment at a higher rate for that period by virtue of this regulation, any payment of Child Disability Payment to be made for that period will be reduced by any Child Disability Payment already paid to that individual for that period.
Entitlement to care component when undergoing dialysis 16.—(1) Subject to paragraph (5), an individual who is at least 3 months old is to be treated as satisfying the conditions for the care component in regulation 11 (care component criterion: lowest, middle or highest rate of care component) where the individual undergoes renal dialysis— (a) where at least one of the conditions in paragraph (2) is met, and (b) at least twice a week, as a consequence of a disability or physical impairment. (2) The conditions are that— (a) the renal dialysis is of a type which normally requires the attendance or supervision of another person, or (b) due to particular circumstances, the individual requires another person to attend— (i) in connection with the individual’s bodily functions, or (ii) to supervise the individual in order to avoid substantial danger to the individual, during the period of the dialysis. (3) Where the renal dialysis mentioned in paragraph (2) takes place by day or at night, the individual is entitled to the middle rate care component. (4) Where the renal dialysis mentioned in paragraph (2) takes place both by day and at night, the individual is entitled to the highest rate care component. (5) An individual is not entitled to the care component unless— (a) throughout the period of 13 weeks immediately preceding the date on which the award of that component would begin, the individual has satisfied or is likely to satisfy the requirements in paragraph (1) as read with paragraph (2), and (b) the individual is likely to continue to satisfy those requirements throughout the period of 26 weeks beginning with that date.
PART 5 Effect of time spent in care homes and in legal detention
Effect of admission to a care home on ongoing entitlement to care component 17.—(1) This regulation applies where an individual who has an ongoing entitlement to the care component of Child Disability Payment, becomes a resident of a care home. (2) Subject to paragraphs (4) and (5), on and after the day on which the individual has been resident in a care home for 28 days, and for so long as the individual continues to reside in such a home, the value of the care component of Child Disability Payment that is to be given to the individual is £0 instead of the values set out in regulation 23 (amount and form of Child Disability Payment). (3) The 28 days referred to in paragraph (2) may comprise two or more separate periods, provided that there is no more than 28 days between each period.
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(4) Paragraph (2) does not apply to a resident in a care home, where the full costs of any qualifying services are met— (a) entirely out of the resources of the individual for whom the qualifying services are provided, (b) partly out of the resources of the individual for whom the qualifying services are provided and partly out of the resources of another person (other than a local authority) or assistance from a charity, or (c) entirely out of the resources of another person (other than a local authority) or assistance from a charity. (5) For the purposes of this regulation, an individual is not resident in a care home during any period when the individual is being looked after by a local authority and— (a) has been placed temporarily in a private dwelling with a family, relative or some other suitable person while— (i) under the age of 16, or (ii) aged between 16 and 18 and receiving services under Part II of the Children (Scotland) Act 1995(a) by virtue of being a child in need within the meaning of section 93(4)(a)(ii) (impairment of health), or 93(4)(a)(iii) (disability) of that Act, or (b) is accommodated in a care home outside the United Kingdom, where the costs of any qualifying services are met by a local authority exercising its powers under section 25 of the Education (Additional Support for Learning) (Scotland) Act 2004(b). (6) For the purposes of this regulation and regulation 20 (entitlement beginning while in alternative accommodation), reference to an individual being “looked after by a local authority” is to be construed, as the case may be, in accordance with— (a) section 17(6) of the Children (Scotland) Act 1995(c), (b) section 105(4) of the Children Act 1989(d), or (c) article 25 of the Children (Northern Ireland) Order 1995(e).
Effect of legal detention on ongoing entitlement to care component 18.—(1) This regulation applies where an individual who has an ongoing entitlement to the care component of Child Disability Payment is in legal detention. (2) On and after the day on which an individual has been in legal detention for 28 days, and for so long as the individual continues to be in legal detention, the value of the care component of Child Disability Payment that is to be given to the individual is to be £0, instead of the values set out in regulation 23 (amount and form of Child Disability Payment).
Calculation of periods of time spent in a care home or in legal detention 19.—(1) Subject to paragraphs (2) and (3), a period during which an individual is resident in a care home for the purpose of regulation 17 or in legal detention for the purpose of regulation 18 is to be taken to— (a) begin on the day after the day on which the individual enters the care home or legal detention, and (b) end on the day before the day on which the individual leaves the care home or legal detention.
(a) 1995 c.36. (b) 2004 asp 4. (c) Section 17(6) was amended by paragraph 9(4)(b) of schedule 2 of the Adoption and Children (Scotland) Act 2007 (asp 4), paragraph 2(4) of schedule 5 of the Children’s Hearings (Scotland) Act 2011 (asp 1) and S.S.I. 2013/211. (d) 1989 c.41, relevantly amended by S.I. 2016/413. (e) S.I. 1995/755, amended by section 2(1) of the Children (Leaving Care) Act (Northern Ireland) 2002 (c.11).
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(2) Where an individual who is resident in a care home takes a period of leave from the home, the days on which the individual begins and returns from leave are not to be counted as days of residence in the home. (3) Days constituting a period of leave are not to be counted as days of residence in a care home. (4) Where an individual enters or returns to a care home as a result of a transfer from a hospital or a hospice, or from another care home, the day of transfer is to be counted as a day of residence in a care home. (5) Where an individual enters legal detention as a result of a transfer from a hospital or a hospice, or from a care home, the day of transfer is to be counted as a day in legal detention.
Entitlement beginning while in alternative accommodation 20.—(1) This regulation applies where an individual is resident in a care home or in legal detention on the day on which entitlement to Child Disability Payment begins. (2) On and after that day, and for so long as the individual continues to reside in a care, or be in legal detention, the value of the care component of Child Disability Payment that is to be given to the individual is £0 instead of the values set out in regulation 23 (amount and form of Child Disability Payment). (3) Paragraphs (1) and (2) do not apply where the costs of any qualifying services whilst resident in a care home are met— (a) entirely out of the resources of the individual for whom the qualifying services are provided, (b) partly out of the resources of the individual for whom the qualifying services are provided and partly out of the resources of another person (other than a local authority) or assistance from a charity, or (c) entirely out of the resources of another person (other than a local authority) or assistance from a charity. (4) For the purposes of this regulation an individual is not resident in a care home during any period when the individual is being looked after by a local authority and— (a) has been placed temporarily in a private dwelling with a family, relative or some other suitable person while— (i) under the age of 16, (ii) aged between 16 and 18 and receiving services under Part II of the Children (Scotland) Act 1995 by virtue of being a child in need within the meaning of section 93(4)(a)(ii) (impairment of health), or 93(4)(a)(iii) (disability) of that Act, or (b) is accommodated in a care home outside the United Kingdom, where the costs of any qualifying services are met by a local authority exercising its powers under section 25 of the Education (Additional Support for Learning) (Scotland) Act 2004.
Entitlement to care component of Child Disability Payment while an in-patient 21. For the avoidance of doubt, any period when an individual is an in-patient in a hospice or hospital, has no effect on the individual’s entitlement to the care component of Child Disability Payment.
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PART 6 Making of applications and payments and duration of eligibility
Making payments 22.—(1) Where Child Disability Payment is payable in respect of an individual, the Scottish Ministers may, where they consider it appropriate, make the payment to another person to be used for the benefit of the individual. (2) Where the Scottish Ministers consider, for any reason, that it is no longer appropriate for a particular person who falls within paragraph (1) to continue to receive the payment, they may cease making payment to that person.
Amount and form of Child Disability Payment 23.—(1) The weekly rate of payment of the care component is where the individual is entitled to— (a) the highest rate, £89.60, (b) the middle rate, £60.00, or (c) the lowest rate, £23.70. (2) The weekly rate of payment of the mobility component is where the individual is entitled to— (a) the higher rate, £62.55, or (b) the lower rate, £23.70. (3) Where an individual is entitled to payment of the care component or the mobility component for a period shorter than one week, payment of that component is to be made at one-seventh of the relevant weekly rate, for each day of entitlement. (4) For any week where an individual is entitled to— (a) the care component of Child Disability Payment, and (b) payment of an amount in respect of constant attendance under section 61 of the Social Security Act 1975(a), the amount of the care component of Child Disability Payment that is to be given to the individual is to be reduced by the amount paid under that section. (5) For the purpose of calculating the amount of the care component that is to be given to the individual, in accordance with paragraph (4), where the amount in respect of constant attendance is equal to or greater than the amount of the care component of Child Disability Payment the value of Child Disability Payment that is to be given to the individual is to be £0. (6) For any week where an individual is entitled to— (a) the mobility component of Child Disability Payment, and (b) payment of War Pensioners’ Mobility Supplement within the meaning of— (i) the Naval, Military and Air Forces etc. (Disablement and Death) Service Pensions Order 1983 (“1983 Order”)(b), (ii) the Personal Injuries (Civilians) Scheme 1983(c),
(a) 1975 c.14. (b) S.I. 1983/883. (c) S.I. 1983/686.
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(iii) the 1983 Order by virtue of the War Pensions (Naval Auxiliary Personnel) Scheme 1964(a), (iv) the Pensions (Polish Forces) Scheme 1964(b), (v) the War Pensions (Mercantile Marine) Scheme 1964(c), or (vi) an Order of Her Majesty in relation to the Home Guard dated 21 December 1964 or 22 December 1964, or in relation to the Ulster Defence Regiment dated 4 January 1971, the amount of the mobility component of Child Disability Payment that is to be given to the individual is to be £0. (7) For each week in the period of 8 weeks ending with the death of the individual— (a) the amount of Child Disability Payment that is to be given to that individual is the relevant weekly rate of each component to which the individual is entitled in that week, multiplied by two, and (b) any provision in these Regulations reducing the amount to £0 has no effect. (8) Child Disability Payment may only be given as money, except as provided for by regulation 27(1) (form of payment – giving Child Disability Payment by way of deduction).
When an application is to be treated as made and beginning of entitlement to assistance 24.—(1) An application for Child Disability Payment is to be treated as made— (a) on the day it is received by the Scottish Ministers, or (b) if applicable, on the day identified by the Scottish Ministers in accordance with paragraph (2). (2) If, before making a determination on the basis of an application, the Scottish Ministers consider that the individual in respect of whom the application is made— (a) would not satisfy the requirement in— (i) regulation 4 (age criteria), (ii) regulations 5 to 9 (residence and presence conditions etc.), (iii) regulation 10 (entitlement to other benefits), (iv) regulation 11 (care component criterion: lowest, middle or highest rate of care component), (v) regulation 12 (mobility requirements: lower rate mobility component), (vi) regulation 13 (mobility requirements: higher rate mobility component), or (vii) regulation 16 (entitlement to care component when undergoing dialysis), if the application were treated as made on the day it was received, and (b) would likely be entitled to receive Child Disability Payment if those requirements were satisfied within a 13-week period beginning on the day it was received, the Scottish Ministers may choose the date within that 13 week period on which the application is to be treated as having been made. (3) Where, on the basis of an application, a determination is made that an individual is entitled to Child Disability Payment, the date on which entitlement begins is to be identified in accordance with paragraphs (4) to (6). (4) Where an application is made within 6 weeks of the day on which the full name and date of birth of an individual (“the required data”) is submitted by, or on behalf of, the individual to the
(a) S.I. 1964/1985. (b) S.I. 1964/2007. (c) S.I. 1964/2058.
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Scottish Ministers for the purpose of an application for Child Disability Payment, entitlement begins on whichever is the later of the day— (a) on which the required data was submitted, or (b) identified in accordance with paragraph (2). (5) Subject to paragraph (6), where an application is made after the 6 week period described in paragraph (4), entitlement begins on the day on which the application is treated as having been made in accordance with paragraph (1). (6) Where the Scottish Ministers are satisfied that there is good reason why an application was made after the 6 week period described in paragraph (4), they may treat the application as having been made within that period. (7) For the purposes of section 38(3) (application for assistance) of the 2018 Act, the period covered by an application for Child Disability Payment— (a) under paragraph (1)(a)— (i) begins on the day on which the application is treated as having been made, and (ii) ends on the day on which the determination of entitlement is made, and (b) under paragraph (1)(b)— (i) is deemed to begin on the day before the determination is made provided that the requirements are satisfied, and (ii) ends on the day on which the determination is made.
Time of payment 25. Where an award of Child Disability Payment is made, the Scottish Ministers are to make— (a) the first payment of assistance on a date specified in the notice of determination, and (b) any subsequent payment— (i) 4 weekly in arrears, or (ii) where regulation 15 (entitlement under special rules for terminal illness) applies, weekly in advance.
Continuing eligibility 26.—(1) Subject to paragraphs (3) and (4), a determination that an individual is entitled to Child Disability Payment in respect of a period is to be made on the basis that the individual has an ongoing entitlement to Child Disability Payment after the end of that period, except where paragraph (2) applies. (2) This paragraph applies where, after the end of the period mentioned in paragraph (1), the individual no longer satisfies the eligibility rules. (3) A determination of ongoing entitlement is made on the basis that— (a) the individual will continue to be entitled to Child Disability Payment for a fixed or indefinite period as specified in the notice of determination, and (b) the decision that the individual is entitled to Child Disability Payment for each subsequent 4-week period is to be taken in accordance with these Regulations, on the strength of the assumptions set out in paragraph (4). (4) The assumptions are that— (a) the individual continues to satisfy the eligibility criteria which were satisfied to be entitled to Child Disability Payment under the determination mentioned in paragraph (1), (b) the information on which the determination mentioned in paragraph (1) was made still applies and is relevant in the individual’s case, and
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(c) there is no change in circumstances of the individual which would require to be notified under section 56 (duty to notify change of circumstances) of the 2018 Act.
Form of payment – giving Child Disability Payment by way of deduction 27.—(1) Where an individual has a liability to the Scottish Ministers under section 63 of the 2018 Act (liability for assistance given in error), the individual’s payment of Child Disability Payment may be given (in whole or in part) by way of deduction, at a reasonable level, from that liability either— (a) with the agreement of the individual, or (b) without the individual’s agreement, where the individual has unreasonably refused to agree to the assistance being given in that form. (2) For the purpose of paragraph (1), “reasonable level” means a level that is reasonable having regard to the financial circumstances of the individual.
When an increase in level of entitlement takes effect 28.—(1) Where, as a result of a determination without an application, the amount of Child Disability Payment payable in respect of an individual is increased or their entitlement to a component is awarded, the changed entitlement begins— (a) in the case of an increase pursuant to a determination made under regulation 31(d) (determination following change of circumstances etc.) on the day after the day on which Disability Living Allowance ceased to be paid in respect of the individual, (b) in the case of an award of entitlement to a component or an increase pursuant to a determination made in accordance with regulation 31(a) as a result of the individual reporting a change that affects their eligibility under regulation 11 (care component criterion: lowest, middle or highest rate of care component), 12 (mobility requirements: lower rate mobility component) or 13 (mobility requirements: higher rate mobility component), on the date when— (i) if the individual reports the change within one month of the change occurring, the individual first satisfies the requirements for a higher rate of the care or mobility component, (ii) if the individual reports the change more than one month but not more than 13 months of the change occurring, the individual first satisfies the requirements for a higher rate of the care or mobility component, but only if the Scottish Ministers consider that the individual had good reason for not notifying the change within one month, or (iii) in any other case, the individual reports the change. (c) in the case of an earlier determination which was based on official error within the meaning of regulation 32 (determination following official error - underpayments) or on error within the meaning of regulation 33 (determination following error – overpayments), begins on the date when the earlier determination took effect, or (d) in any other case, on the date when Scottish Ministers make the determination. (2) Where the Scottish Ministers consider that in all the circumstances it would be unjust not to do so, they may, when making their determination, set an earlier date for the purposes of paragraph 1(b), (c) or (d). (3) This regulation does not apply to an individual to whom regulation 15 (entitlement under special rules for terminal illness) applies.
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When a decrease in level or cessation of entitlement takes effect 29.—(1) Where, as a result of a determination without an application, the amount of Child Disability Payment payable in respect of an individual is decreased or their entitlement to a component is ceased, the changed entitlement begins— (a) in the case of a decrease pursuant to a determination made under regulation 31(d) (determination following change of circumstances etc.) on the day after the day on which Disability Living Allowance ceased to be paid in respect of the individual, (b) in the case of a determination without application under regulation 31(a), on the date when— (i) if the individual knowingly fails to notify a change that the individual was required to notify under section 56 of the 2018 Act, the individual should have notified Scottish Ministers of the change, (ii) in any other case, the Scottish Ministers make the determination, (c) in the case of an earlier determination which was based on official error within the meaning of regulation 32 (determination following official error - underpayments) or on error within the meaning of regulation 33 (determination following error – overpayments), begins on the date when the earlier determination took effect, (d) in any other case, on the date when Scottish Ministers make the determination. (2) Where the Scottish Ministers consider that in all the circumstances it would be unjust not to do so, they may, when making their determination, set a later date for the purposes of paragraph 1(b), (c) or (d).
PART 7 Re-consideration of entitlement to Child Disability Payment: determination without application
Consideration of entitlement after specified period 30. The Scottish Ministers must make a determination of an individual’s entitlement to Child Disability Payment, without receiving an application, after the end of the period specified (if any) in— (a) the individual’s notice of determination under section 40 or notice of re-determination under section 44 (as the case may be), or (b) a determination made by the First-tier Tribunal for Scotland under section 49, of the 2018 Act.
Determination following change of circumstances etc. 31. The Scottish Ministers must make a determination of an individual’s entitlement to Child Disability Payment, without receiving an application, where the individual has an ongoing entitlement to Child Disability Payment and they become aware— (a) of a change of circumstances, whether or not notified by the individual in accordance with section 56 of the 2018 Act, which would possibly result in an alteration to the component or rate of Child Disability Payment payable to the individual or which is likely to mean that the individual is no longer entitled to Child Disability Payment, (b) that the individual has died, (c) of an alteration of the component or rate of award of Disability Living Allowance which the individual was entitled to immediately before the date of transfer to Child Disability
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Payment in accordance with Part 3 of the schedule (transitional provisions), as a result of a decision made pursuant to— (i) a revision under regulation 3 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (“the 1999 Regulations”)(a), (ii) a supersession under regulation 6(b) of the 1999 Regulations, (iii) an appeal under section 12 of the Social Security Act 1998 (“the 1998 Act”)(c), (iv) a re-consideration under section 13 of the 1998 Act(d), or (v) an appeal to the Upper Tribunal under section 14 of the 1998 Act(e), (d) of an alteration of the rate of award of Disability Living Allowance which the individual was entitled to immediately before moving to Scotland in circumstances in which regulation 35 (individuals in respect of whom Disability Living Allowance is paid in another part of the United Kingdom immediately before moving to Scotland) applies, as a result of a decision made pursuant to— (i) a revision under regulation 3 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, (ii) a supersession under regulation 6 of those Regulations, (iii) an appeal under section 12 of the Social Security Act 1998 (“the 1998 Act”), (iv) a re-consideration under section 13 of the 1998 Act, (v) an appeal to the Upper Tribunal under section 14 of the 1998 Act, (vi) a revision under article 10 of the Social Security (Northern Ireland) Order 1998(f) (“the 1998 Order”), (vii) a supersession under article 11 of the 1998 Order(g), (viii) an appeal under article 13 of the 1998 Order(h), or (ix) an appeal to the Commissioner under article 15 of the 1998 Order(i).
Determination following official error - underpayments 32.—(1) The Scottish Ministers are to make a determination of an individual’s entitlement to Child Disability Payment, without receiving an application, where— (a) they have previously made a determination of the individual’s entitlement to Child Disability Payment (“the original determination”),
(a) S.I. 1999/991, regulation 3 was amended by S.I. 1999/1623, S.I. 1999/1662, S.I. 1999/2570, S.I. 1999/2677, S.I. 2000/897, S.I. 2002/428, S.I. 2002/1379, S.I. 2002/1703, S.I. 2003/916, S.I. 2003/1050, S.I. 2003/1886, S.I. 2005/337, S.I. 2005/2677, S.I. 2006/832, S.I. 2007/2470, S.I. 2007/2582, S.I. 2008/1554, S.I. 2008/2667, S.I. 2008/2683, S.I. 2009/659, S.I. 2009/1490, S.I. 2010/840, S.I. 2010/1160, S.I. 2011/2425, S.I. 2012/824, S.I. 2012/913, S.I. 2012/919, S.I. 2012/2568, S.I. 2012/2575, S.I. 2013/2380, 2014/1097, S.I. 2015/339, S.I. 2015/1985, S.I. 2016/1145, S.I. 2017/422 and S.I. 2017/1015. (b) Regulation 6 was amended by S.I. 1999/1623, S.I. 1999/2677, S.I. 2000/897, S.I. 2000/1596, S.I. 2001/1711, S.I. 2002/428, S.I. 2002/490, S.I. 2002/3019, S.I. 2003/1050, S.I. 2003/1886, S.I. 2003/2274, S.I. 2004/959, S.I. 2005/337, S.I. 2005/2677, S.I. 2008/1554, S.I. 2008/2667, S.I. 2008/2683, S.I. 2010/424, S.I. 2010/563, S.I. 2010/840, S.I. 2010/1160, S.I. 2012/1267, S.I. 2012/2568, S.I. 2014/1097, S.I. 2015/1985 and S.I. 2016/1145. (c) 1998 c.14, amended by paragraph 25 of schedule 7 and paragraph 1 of schedule 10 of the Social Security Contributions (Transfer of Functions, etc.) Act 1999 (c.2), S.I. 2008/2833, sections 102 and 105 of the Welfare Reform Act 2012 (c.5) and S.I. 2014/886. (d) Section 13 was amended by paragraph 26 of schedule 7 of the Social Security Contributions (Transfer of Functions, etc.) Act 1999 (c.2) and S.I. 2008/2833. (e) Section 14 was amended by paragraph 1 of schedule 10 of the Social Security Contributions (Transfer of Functions, etc.) Act 1999 (c.2) and S.I. 2008/2833. (f) S.I. 1998/1506. Article 10 was amended by S.I. 2015/2006. (g) Article 11 was amended by S.I. 1999/671 and S.I. 2015/2006. (h) Article 13 was amended by S.I. 1999/671, S.I. 2014/886, and 2015/2006. (i) Article 15 was amended by paragraph 22(1) of schedule 7 of the Child Support, Pensions and Social Security Act (Northern Ireland) 2000 (c.4) and S.I. 1999/671.
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(b) they establish that, due to an official error, the original determination was incorrect resulting in the individual— (i) not being given an award of Child Disability Payment, or (ii) being given a lower award than that, to which the individual was entitled, (c) the Scottish Ministers are not considering a request for a re-determination of the individual’s entitlement to the Payment, and (d) the individual has not appealed to the First-tier Tribunal for Scotland against the Scottish Ministers’ determination of the individual’s entitlement to Child Disability Payment. (2) In making a determination required by paragraph (1) the Scottish Ministers are to use— (a) the information— (i) provided in the application that led to the original determination, (ii) any other information they have obtained in connection with that application, or (b) any other information they have obtained in connection with the individual’s entitlement to Child Disability Payment. (3) In this regulation “official error” means an error made by someone acting on behalf of the Scottish Ministers or on behalf of a Minister of the Crown that was not materially contributed to by anyone else.
Determination following error - overpayments 33.—(1) The Scottish Ministers are to make a determination of an individual’s entitlement to Child Disability Payment, without receiving an application, where— (a) they have previously made a determination of the individual’s entitlement to Child Disability Payment (“the original determination”), (b) they establish that, due to an error, the original determination was incorrect resulting in the individual being given— (i) an award of Child Disability Payment to which the individual was not entitled, or (ii) a higher award than that to which the individual was entitled. (c) the Scottish Ministers are not considering a request for a re-determination of the individual’s entitlement to the Payment, and (d) the individual has not made an appeal to the First-tier Tribunal for Scotland or Upper Tribunal against the Scottish Ministers’ determination of the individual’s entitlement to Child Disability Payment, that has not yet been determined. (2) In making a determination required by paragraph (1) the Scottish Ministers are to use— (a) the information— (i) provided in the application that led to the original determination, and (ii) any other information they have obtained in connection with that application, (b) any other information they have obtained in connection with the individual’s entitlement to Child Disability Payment, and (c) any other information available to them that is relevant to their consideration of whether the individual is entitled to Child Disability Payment. (3) In this regulation references to an “error” are to— (a) an error in the performance of a function conferred by these Regulations or the 2018 Act, including a determination being made— (i) wrongly, or (ii) correctly but on the basis of— (aa) incorrect information, or
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(bb) an assumption which proves to be wrong, or (b) a new determination not being made after an assumption on the basis of which an earlier determination was made has proved to be wrong.
Determination to effect a deduction decision 34.—(1) The Scottish Ministers are to make a determination of an individual’s entitlement to Child Disability Payment, without receiving an application, where the circumstances in paragraphs (2) and (3) apply. (2) This paragraph applies where— (a) regulation 27 (form of payment - giving Child Disability Payment by way of deduction) allows Child Disability Payment to be given to the individual by way of deduction, or (b) Child Disability Payment is being given to the individual by way of deduction, and the Scottish Ministers consider that may no longer be appropriate. (3) This paragraph applies where the Scottish Ministers have decided to— (a) vary the amount of Child Disability Payment to be given by way of deduction (including introducing a deduction, where the full amount of Child Disability Payment was previously given as money), (b) vary any period for which the individual’s Child Disability is to be given by way of deduction, that may have been specified in a previous determination of the individual’s entitlement, or (c) cease making deductions, and instead give the individual’s Child Disability Payment in the form of money. (4) The Scottish Ministers are to make a determination, without receiving an application, where an individual who is receiving Child Disability Payment by way of deduction under a previous determination of entitlement notifies the Scottish Ministers that the individual— (a) withdraws their agreement to their Child Disability Payment being given by way of deduction, (b) wishes the Scottish Ministers to increase the amount of their Child Disability Payment that is given by way of deduction, (c) wishes the Scottish Ministers to decrease the amount of their Child Disability Payment that is given by way of deduction (including ceasing the deduction), or (d) wishes the Scottish Ministers to amend the length of any period referred to in paragraph (3)(b).
PART 8 Movement of individuals between Scotland and the rest of the United Kingdom
Individuals in respect of whom Disability Living Allowance is paid in another part of the United Kingdom immediately before moving to Scotland 35.—(1) Where an individual— (a) is under 18 years of age, (b) becomes resident in Scotland, (c) was resident in another part of the United Kingdom, and (d) was entitled to Disability Living Allowance immediately before the date of the move, the Scottish Ministers are to make a determination without application of the individual’s entitlement to Child Disability Payment.
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(2) Entitlement to Child Disability Payment under paragraph (1) begins on the day after the day on which Disability Living Allowance ceases to be paid in respect of the individual. (3) In this regulation, “the date of the move” is the date when the individual becomes resident in Scotland as notified by the individual to the Scottish Ministers (whether the notification takes place before or after the date of the move).
Individuals in respect of whom Child Disability Payment is paid at the time of moving to another part of the United Kingdom 36.—(1) Where the Scottish Ministers are notified that an individual who is entitled to Child Disability Payment has moved or is to move to become ordinarily resident in another part of the United Kingdom, the individual is to be treated as though the individual meets the condition of being ordinarily resident in Scotland for a period of 13 weeks beginning with the date of the move. (2) Subject to Part 5 (effect of time spent in care homes and in legal detention), where the Scottish Ministers receive notification mentioned in paragraph (1), they are to make a determination without application at the end of the 13-week period mentioned in paragraph (1) that the individual’s entitlement to Child Disability Payment is to terminate. (3) Where before the end of the 13-week period, the Scottish Ministers are notified that the individual is no longer to move to become ordinarily resident in another part of the United Kingdom, the notification mentioned in paragraph (1) is to be treated as not having been made and the duty in paragraph (2) does not apply. (4) Where an individual notifies the Scottish Ministers that they have become resident in another part of the United Kingdom and they have been resident there for 13 weeks or more— (a) entitlement to Child Disability Payment ceases on, and (b) regulation 33 (determination following error – overpayments) applies to any Child Disability Payment paid to an individual after 13 weeks after, the date when the individual became resident in another part of the United Kingdom. (5) In this regulation, “the date of the move” is, where the individual notifies the Scottish Ministers— (a) before the date when the individual ceases to be resident in Scotland, the date when the individual becomes resident in another part of the United Kingdom or (b) after the date when the individual becomes resident in another part of the United Kingdom but before they have been resident there for 13 weeks, the date of notification.
PART 9 Periods in respect of a re-determination request
Periods in respect of a re-determination request 37.—(1) The period for requesting a re-determination of entitlement to Child Disability Payment under section 41 (right to request re-determination) of the 2018 Act is 42 days beginning with the day that the individual is informed, in accordance with section 40 of the 2018 Act (notice of determination), of the right to make the request. (2) In relation to determining entitlement to Child Disability Payment, the period allowed for re- determination (within the meaning of section 43 of the 2018 Act (duty to re-determine)) is 56 days beginning with— (a) the day that the request for a re-determination is received by the Scottish Ministers, or (b) in a case where the request for a re-determination is received by the Scottish Ministers outwith the period prescribed in paragraph (1), the day on which it is decided by the Scottish Ministers or (as the case may be) the First-tier Tribunal for Scotland that the individual in question has a good reason for not requesting a re-determination sooner.
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PART 10 Provision of vehicles
Payment of mobility component to authorised providers of vehicles for individuals with disabilities 38.—(1) Where— (a) an individual is entitled to the higher rate of the mobility component of Child Disability Payment, and (b) the individual has entered into an agreement with an authorised provider of vehicles for persons with disabilities for the hire or hire-purchase of a vehicle, the Scottish Ministers may, with the consent of the individual, pay that component (in whole or in part) to the provider to be used to meet, or contribute towards meeting, the individual’s liability under the agreement. (2) The Scottish Ministers must cease to make payments to the provider in accordance with paragraph (1) in the event that— (a) the agreement is brought to an end in accordance with the terms of the agreement, or (b) the individual withdraws their consent.
Vehicles for persons with disabilities – powers of appointees 39.—(1) Where a person (an “appointee”) is appointed by the Scottish Ministers under the 2018 Act to act on an individual’s behalf in connection with the determination of the individual’s entitlement to assistance under section 24 of the 2018 Act (duty to give assistance), in addition to the powers conferred on the appointee by that Act the appointee can, on behalf of the individual— (a) enter into an agreement with an authorised provider of vehicles for the hire or hire- purchase of a vehicle, (b) terminate any such agreement, (c) for the purpose of regulation 38(1), give consent to the Scottish Ministers to pay (in whole or in part) the mobility component to which the individual is entitled to the provider, and (d) withdraw any such consent. (2) An appointee may exercise the powers conferred by paragraph (1)(b) and (d) whether the agreement was entered into, or the consent given, by the appointee or by any other person.
PART 11 Initial period for applications
Initial period for applications 40. Part 2 of the schedule makes provision about the initial period for applications.
PART 12 Transfer to Child Disability Payment
Transfer to Child Disability Payment 41. Part 3 of the schedule makes provision about transferring from Disability Living Allowance to Child Disability Payment.
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PART 13 Short-term assistance
Entitlement to short-term assistance 42. Part 1 of the schedule makes provision about short-term assistance.
PART 14 Consequential amendment
Consequential amendment 43. The amendment specified in Part 4 of the schedule has effect.
PART 15 Transitory provision
Transitory provision – initial period for applications 44.—(1) During the initial period for applications, in addition to meeting the residence and presence conditions in regulation 5, an individual must be resident in one of the local authority areas specified in paragraph 6 of Part 2 of the schedule on the date their application is received by the Scottish Ministers. (2) In this regulation and in Part 2 of the schedule, “initial period for applications” means the period beginning with 26 July 2021 and ending with 21 November 2021.
Exclusion to transitory provision 45.—(1) An individual who has made a claim for Disability Living Allowance prior to 26 July 2021 which has not yet been decided is not entitled to be paid Child Disability Payment during the initial period for applications. (2) In paragraph (1) a claim for Disability Living Allowance is decided if it has— (a) been decided by the Secretary of State under section 8 (decisions by Secretary of State) of the Social Security Act 1998(a), (b) been withdrawn in accordance with regulation 5(2) of the Social Security (Claims and Payments) Regulations 1987(b), or (c) otherwise is no longer to be decided by the Secretary of State as mentioned in sub- paragraph (a).
Name A member of the Scottish Government St Andrew’s House, Edinburgh Date
(a) 1998 c.14, relevantly amended by paragraph 1 of Part 1 of schedule 10 of the Social Security Contributions (Transfer of Functions, etc.) Act 1999 (c.2) and paragraph 1 of Part 8 of schedule 14 of the Welfare Reform Act 2012 (c.5). (b) S.I. 1987/1968.
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SCHEDULE
PART 1 Regulation 42 Short-term assistance
Entitlement to short-term assistance 1.—(1) Subject to sub-paragraph (2), an individual who is, or was, entitled to Child Disability Payment under a determination made on the basis that the individual has ongoing entitlement is entitled to short-term assistance where— (a) a determination of the individual’s entitlement to Child Disability Payment (“earlier determination”) has been superseded by a subsequent determination (“subsequent determination”) which has the effect that the individual is— (i) no longer entitled to Child Disability Payment, or (ii) entitled to a lower amount of Child Disability Payment, (b) the individual’s entitlement to Child Disability Payment is under review within the meaning of paragraph 1(2) of schedule 10 of the 2018 Act, and (c) the individual— (i) continues to meet the conditions as to residence and presence set out in regulations 5 to 9, or (ii) has transferred to become ordinarily resident in another part of the United Kingdom, and the matter under review is the determination of entitlement for the 13-week period beginning with the date of the transfer in accordance with regulation 36 (individuals in respect of whom Child Disability Payment is paid at the time of moving to another part of the United Kingdom). (2) An individual is not entitled to short-term assistance where the individual is no longer entitled to Child Disability Payment as a result of a subsequent determination made under regulation 31(b) (determination following change of circumstances etc.). (3) An individual to whom regulation 17(2) (effect of admission to a care home on ongoing entitlement to care component) or 18(2) (effect of legal detention on ongoing entitlement to care component) applies is not entitled to short-term assistance in respect of the care component of Child Disability Payment. (4) Where the Scottish Ministers have made a determination under section 37 of the 2018 Act (duty to make determination) that an individual is entitled to short-term assistance, entitlement to short-term assistance begins— (a) where a request is made under section 41 of the 2018 Act (right to request re- determination) for a re-determination of the determination of the individual’s entitlement to Child Disability Payment mentioned in paragraph 1(1)(a), on the day that request is made, (b) where a notice of appeal is submitted under section 47 of the 2018 Act (initiating an appeal) against the determination of the individual’s entitlement to Child Disability Payment mentioned in paragraph 1(1)(a), on the day that request is made, (c) where a decision of the Scottish Ministers is made not to accept a request for a re- determination of the individual’s entitlement to Child Disability Payment mentioned in paragraph 1(1)(a), on the day that decision is set aside by the First-tier Tribunal for Scotland, or
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(d) a request is made under section 48(1)(b) of the 2018 Act (deadline for appealing) for permission to appeal the determination of the individual’s entitlement to Child Disability Payment mentioned in paragraph 1(1)(a), on the day that request is made.
Value and form 2.—(1) The value of short-term assistance payable is to be the difference between the amount of Child Disability Payment to which the individual was entitled under the earlier determination mentioned in paragraph 1(1)(a), and the amount of Child Disability Payment the individual is entitled to under the subsequent determination mentioned in paragraph 1(1)(a). (2) The form in which the short term assistance is to be given is to be the same as the form in which Child Disability Payment was given under the earlier determination. (3) Where the mobility component was being paid by the Scottish Ministers to an authorised provider of vehicles for persons with disabilities in accordance with regulation 38(1) (payment of mobility component to authorised provider of vehicles for individuals with disabilities) on the day before an individual’s entitlement to the mobility component ended as a result of a subsequent determination mentioned in paragraph 1(1)(a)— (a) the amount of short-term assistance that is payable in respect of the mobility component may be paid by the Scottish Ministers to the authorised provider, and (b) paragraphs (1) and (2) of regulation 38 apply to the payment of short-term assistance as they had applied to the payment of mobility component prior to the individual’s entitlement ending. (4) Regulations 27 (form of payment - giving Child Disability Payment by way of deduction), 32 (determination following official error – underpayments), 33 (determination following error – overpayments) and 34 (determination to effect a deduction decision) apply to short-term assistance in the same way as they apply to Child Disability Payment.
End of entitlement 3.—(1) Entitlement to short-term assistance ends on the day— (a) a determination of an individual’s entitlement to short-term assistance is cancelled under section 26(2) of the 2018 Act (individual’s right to stop receiving assistance), (b) a determination of an individual’s entitlement to Child Disability Payment is made by the Scottish Ministers under regulation 31 (determination following change of circumstances etc.), (c) the First-tier Tribunal for Scotland makes a decision under section 49 of the 2018 Act (First-tier Tribunal’s power to determine entitlement) in relation to the subsequent determination of the individual’s entitlement to Child Disability Payment mentioned in paragraph 1(1)(a), or (d) that the First-tier Tribunal for Scotland makes a determination to refuse permission under section 48(1)(b) of the 2018 Act (deadline for appealing) to bring an appeal against the subsequent determination of the individual’s entitlement to Child Disability Payment mentioned in paragraph 1(1)(a). (2) Where a decision of the First-tier Tribunal for Scotland mentioned in sub-paragraph (1)(c) is set aside after a review under section 43(2) of the Tribunals (Scotland) Act 2014(a) (review of decisions) the Scottish Ministers are to make a determination without application of the individual’s entitlement to short-term assistance.
(a) 2014 asp 10.
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Reduction of payment of Child Disability Payment where short-term assistance is paid 4. Where an individual has received short-term assistance for a period and a determination is subsequently made that that individual is entitled to Child Disability Payment at the same rate or at a higher rate for that period, any payment of Child Disability Payment to be made for that period is to be reduced by any short-term assistance and any Child Disability Payment already paid to that individual for that period.
PART 2 Regulation 40 Initial period for applications
Initial period for applications 5.—(1) These Regulations apply to an individual who is resident in one of the local authority areas mentioned in paragraph 6 when they make an application for Child Disability Payment during the initial period for applications. (2) An individual who is awarded Child Disability Payment pursuant to an application made during the initial period for applications will continue to be entitled if that person moves to another local authority area in Scotland.
Local authority areas for initial period for applications 6. The local authority areas are Perthshire and Kinross, City of Dundee and the Western Isles.
PART 3 Regulation 41 Transfer to Child Disability Payment
Interpretation 7. In this Part of the schedule— “date of transfer” means the date when a transferring individual’s entitlement to Child Disability Payment begins by virtue of a determination made under paragraph 9(1), “relevant individual” means an individual— (a) who has an award of Disability Living Allowance who appears to the Scottish Ministers to be likely to be eligible for Child Disability Payment, (b) who is— (i) ordinarily resident in Scotland, or (ii) someone to whom regulation 5(4) (residence and presence conditions) or 9(2) (persons residing outside the United Kingdom to whom a relevant EU regulation applies) applies, “sufficient” means a link to Scotland that is sufficiently close that regulations 5(4) or 9(2) would be incompatible with the applicable agreement mentioned in that regulation, if the relevant individual were not entitled to Child Disability Payment, “transfer notice” means the notice required by paragraph 8, and “transferring individual” means a relevant individual on whom the Scottish Ministers have served a notice of intention to transfer in accordance with paragraph 8.
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Notice of intention to transfer to Child Disability Payment 8.—(1) The Scottish Ministers are to notify each relevant individual of their intention to transfer that individual’s entitlement to disability assistance from an entitlement to Disability Living Allowance to an entitlement to Child Disability Payment. (2) Notice under sub-paragraph (1) must— (a) be given in a way that leaves the relevant individual with a record of the information which they can show to, or otherwise share with, others, (b) inform the relevant individual that— (i) they have been identified as a relevant individual for the purposes of transfer to Child Disability Payment, (ii) the Scottish Ministers will make a determination without application to transfer the individual’s entitlement to Disability Living Allowance to an entitlement to Child Disability Payment within 13 weeks of the date of the notice (the individual will be notified when the determination is made and informed about their award and start date of Child Disability Payment), and (iii) the individual’s award of Disability Living Allowance will cease immediately before the award of Child Disability Payment begins. (3) Where a notice under sub-paragraph (1) is given in error where the individual is neither— (a) ordinarily resident in Scotland, nor (b) an individual who is habitually resident in an EEA state, Gibraltar or Switzerland and has a genuine and sufficient link to Scotland, the duty on the Scottish Ministers in paragraph 9(1) does not apply. (4) Where sub-paragraph (3) applies in respect of an individual and a determination under paragraph 9(1) has not been made, the Scottish Ministers are to notify the individual that the duty on the Scottish Ministers in paragraph 9(1) does not apply.
Determination without application of entitlement to Child Disability Payment 9.—(1) The Scottish Ministers are to make a determination without application in respect of a transferring individual of that individual’s entitlement to Child Disability Payment. (2) Entitlement to Child Disability Payment under a determination under sub-paragraph (1) begins on the date specified in the notice of determination given to the transferring individual in accordance with section 40 of the 2018 Act. (3) The determination under sub-paragraph (1) is to be made on the basis of— (a) such information as the Scottish Ministers have received from the Secretary of State for Work and Pensions in respect of the transferring individual’s entitlement to Disability Living Allowance, and (b) any other information available to the Scottish Ministers that appears to them to be relevant. (4) Subject to paragraph 11, a determination under sub-paragraph (1) must be made on the basis that the transferring individual is entitled to the components and rates of Child Disability Payment that are equivalent to those components and rates of Disability Living Allowance to which the individual was entitled immediately before the date of transfer. (5) A determination under sub-paragraph (1)— (a) may be made on the assumption that whatever can be discerned about the transferring individual’s circumstances from the information mentioned in sub-paragraph (3) remains accurate on the date on which the determination is made, (b) notwithstanding the generality of head (a), is to be made on the assumption that the conditions relating to residence and presence set out in regulations 5 to 9 (residence and presence conditions etc.) are satisfied in the individual’s case, and
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(c) must be made not later than 13 weeks after the date of the notice under paragraph 8(1) unless the Scottish Ministers have— (i) good reason to extend that period, (ii) agreed the period for extension with the Secretary of State for Work and Pensions, and (iii) notified the transferring individual of the extension and the reason for it.
Effect of determination on entitlement to Disability Living Allowance 10. Where a determination is made under paragraph 9 that the transferring individual is entitled to Child Disability Payment, the transferring individual’s entitlement to Disability Living Allowance will cease on the date their entitlement to Child Disability Payment begins.
Exceptions to paragraph 9(4) 11. The following circumstances are exceptions to paragraph 9(4)— (a) a transferring individual who is either not entitled to or entitled to the lower rate of the mobility component of Disability Living Allowance immediately before the date of transfer, is entitled to the higher rate for the mobility component of Child Disability Payment where special rules for terminal illness under regulation 15 (entitlement under special rules for terminal illness) apply to that transferring individual, (b) a transferring individual who is not awarded the care component of Disability Living Allowance and meets the condition in regulation 11(1)(b) (care component criterion: lowest, middle or highest rate of care component) is entitled to the lowest rate of the care component of Child Disability Payment, (c) a transferring individual whose entitlement to either component of Disability Living Allowance was affected because they were under 16 and did not meet the requirement in section 72(1A)(b) of the Social Security Contributions and Benefits Act 1992(a), who is aged 16 or over is entitled to an increased rate of either component or both components of Child Disability Payment, and (d) a transferring individual, whose entitlement to the mobility component of Disability Living Allowance was affected by not meeting the requirement of regulation 12(1A) of the Social Security (Disability Living Allowance) Regulations 1991(b), who meets the condition in regulation 13(5) (mobility requirements: higher rate mobility component), is entitled to— (i) the lower rate of the mobility component of Child Disability Payment where the individual was not entitled to the mobility component of Disability Living Allowance, or (ii) to the higher rate of the mobility component of Child Disability Payment where the individual was entitled to the lower rate of the mobility component of Disability Living Allowance.
Effect of legal custody on payment of the mobility component 12. Where a transferring individual is in legal detention immediately before the date of transfer and payment of the mobility component of Disability Living Allowance is suspended under regulation 3 of the Social Security (General Benefit) Regulations 1982(c), the mobility component of Child Disability Payment is to be paid at the rate equivalent to the rate of Disability Living Allowance paid to the transferring individual immediately prior to the suspension.
(a) 1992 c.4. Subsection (1A) was inserted by section 52(2) of the Welfare Reform Act 2007 (c.5). (b) S.I. 1991/2890. Regulation 12(1A) was inserted by S.I. 2010/1651. (c) S.I. 1982/1408.
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Modification of these Regulations: transferring individuals 13. These Regulations apply to a transferring individual on and after the date of transfer with the following modifications— (a) regulation 17 (effect of admission to a care home on ongoing entitlement to care component) and regulation 18 (effect of legal detention on ongoing entitlement to care component) are to be read as if the period of 28 days begins on the date of transfer, and (b) regulation 24 (when an application is to be treated as made and beginning of entitlement to assistance) is treated as omitted.
Appointees 14.—(1) A person appointed by the Secretary of State for Work and Pensions under regulation 33 or 43 of the Social Security (Claims and Payments) Regulations 1987(a) to receive Disability Living Allowance on behalf of a transferring individual is to be treated on and after the date of transfer as though appointed by the Scottish Ministers to act on behalf of that transferring individual under section 58 (or 85B(b)) or 85A of the 2018 Act. (2) As soon as reasonably practicable after the date of transfer, the Scottish Ministers must— (a) consider whether the conditions for making an appointment in respect of the transferring individual are met (having regard to whichever of section 58(4), 85A(3) or 85B(3) of the 2018 Act applies in the transferring individual’s case), (b) consider whether to terminate the appointment that is treated as having been made by virtue of sub-paragraph (1) and terminate it if they consider it appropriate, and (c) if they have terminated an appointment in pursuance of head (b), appoint under section 58 (or 85B) or 85A of the 2018 Act another person to act on the transferring individual’s behalf if they consider it appropriate to do so.
PART 4 Regulation 43 Consequential amendment 15.—(1) The Social Security Contributions and Benefits Act 1992(c) is amended in accordance with paragraph (2). (2) In section 70(2)(d) (invalid care allowance), after “enhanced rate” insert “or disability assistance by virtue of entitlement to the care component at the middle or highest rate under regulations made under section 31 of the Social Security (Scotland) Act 2018”.
(a) S.I. 1987/1968, relevantly amended by S.I. 1991/2741, S.I. 2002/2469, S.I. 2003/492, S.I. 2004/696, S.I. 2005/337 and S.I. 2013/235. (b) Section 85B is not yet in force but when commenced it will replace section 58. (c) 1992 c.4. (d) Subsection (2) was amended by S.I. 2013/388 and S.I. 2013/796.
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EXPLANATORY NOTE (This note is not part of the Regulations) These Regulations make provision for Child Disability Payment which is a type of disability assistance given by the Scottish Ministers under section 31 of the Social Security (Scotland) Act 2018. Part 2 provides an overview of arrangements for payment of disability assistance for children and young people (“Child Disability Payment”). Part 3 deals with eligibility for the assistance on account of having a disability, including age criteria, residence and presence conditions, entitlement to other benefits, care component criterion and mobility requirements. Part 4 sets out rules of entitlement to the assistance on account of having a terminal illness, and when undergoing dialysis at home. Part 5 deals with the effect on entitlement to the care component of the assistance of residence when in a care home or hospital or in legal detention. Part 6 deals with the making of applications, payments, the amount and form of Child Disability Payment and ongoing eligibility. It also provides for when increases or decreases of entitlement take effect and giving assistance by way of deduction. Part 7 deals with reconsideration of entitlement, where an award of assistance has already been made and is being revisited. It provides for determinations without application to be made where a specified period has elapsed, there is a change in circumstances, to address error or official error or to effect a deduction decision. Part 8 deals with the situation where people in receipt of the assistance, and the DWP equivalent, move to and from Scotland, from other parts of the United Kingdom. Part 9 provides for time periods for dealing with requests for re-determination of entitlement. Part 10 makes provision for the Scottish Ministers to make payment to suppliers of adapted vehicles, with whom recipients of the assistance have entered agreements for hire or hire purchase. These suppliers must be accredited according to a scheme operated by the Scottish Ministers. Part 11 and Part 2 of the schedule makes provision for an initial period for applications to take place before the rollout of the assistance. Part 12 and Part 3 of the schedule makes provision to transfer individuals who are awarded Disability Living Allowance to become entitled to Child Disability Payment. Part 13 and Part 1 of the schedule deals with entitlement to short term assistance, to bridge the gap, in the event that entitlement to the assistance is reduced or removed. This is payable, in certain circumstances, during the time when the change in entitlement is being challenged but the outcome is not yet known. Part 14 and Part 4 of the schedule makes provision for a consequential amendment to the Social Security Contributions and Benefits Act 1992. Part 15 deals with an initial period for applications by way of transitory provision.
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POLICY NOTE
THE DISABILITY ASSISTANCE FOR CHILDREN AND YOUNG PEOPLE (SCOTLAND) REGULATIONS 2021
SSI 2021/XXX
The above instrument will, if approved by the Scottish Parliament, be made in exercise of the powers conferred by sections 31(2), 36(2), 41(4)(a), 43(5), 51(1), 52(1) and (2) and 95 of the Social Security (Scotland) Act 2018. Some of those powers are subject to negative procedure and others to affirmative procedure. The powers are exercised together by virtue of section 33(2) of the Interpretation and Legislative Reform (Scotland) Act 2010 and section 33(3) of that Act makes the instrument subject to the affirmative procedure.
This instrument sets out the rules and eligibility criteria for Child Disability Payment (CDP), a form of assistance to support children and young people who have a physical or mental disability, or who have a terminal illness. This new form of social security assistance will replace Disability Living Allowance for children (DLAC) in Scotland.
This instrument also includes provision to effect the transfer of responsibility for delivering disability benefits for children and young people under the age of 18 who receive DLAC in Scotland from the Department for Work and Pensions (DWP) on behalf of Scottish Ministers to Social Security Scotland; changing the disability benefits for these children and young people from DLAC to CDP.
Policy Objectives Child Disability Payment is intended to help improve outcomes for disabled children and young people, by providing financial assistance to help meet the additional costs associated with care and mobility needs as a result of having a disability.
This form of assistance will replace Disability Living Allowance for Children (DLAC) in Scotland for children and young people aged between 3 months and 18 years. This new form of devolved social security assistance will be delivered by Social Security Scotland on behalf of the Scottish Ministers. The regulations include provision for eligibility, what assistance is to be available, and making an application for assistance.
CDP consists of two components: the care component provides three levels of assistance for children who require assistance with personal care, or supervision as a result of a physical or mental disability; the mobility component provides two levels of assistance for children who have a disability that affects their ability to move around outdoors, or who require supervision to do so.
The eligibility criteria for CDP broadly aligns with the eligibility criteria for DLAC, however, the Scottish Government is making improvements to the application process, and the collection of supporting information about an individual’s disability to make more robust and reliable decisions about entitlement to CDP.
The benefit will be delivered by Social Security Scotland from 26 July 2021, with an initial application period in three local authority areas: Perth and Kinross, Dundee City and Western PAPER 4 SSC/S5/21/6/4
Isles local authority areas. Social Security Scotland will then accept new applications from individuals in other Scottish local authority areas from 22 November 2021.
Case Transfer Responsibility for delivering disability benefits for individuals living in Scotland under the age of 18 who receive DLAC will transfer from the Department for Work and Pensions on behalf of Scottish Ministers to Social Security Scotland from autumn 2021. The disability assistance these individuals are entitled to will also change from DLAC to CDP.
Scottish Ministers will gradually take responsibility for disability benefits for all of these individuals, starting with those aged 16 and 17 to avoid the need for those individuals to apply for Personal Independence Payment. Scottish Ministers will also prioritise transferring the benefits of individuals who have been diagnosed with a terminal illness to CDP.
Scottish Minsters have developed a safe and secure process, which will require no action on behalf of the individual wherever possible and has been designed in line with the following case transfer principles: • no child or young person will be required to re-apply for their benefit; • children and young people will continue to receive the right payment, at the right time; and • no child or young person will be financially disadvantaged at the point of transfer to CDP.
When an individual’s disability benefit has been selected for transfer, Scottish Ministers will receive from DWP data and information relevant to the individual’s most recent DLAC award. Once Scottish Ministers have received this information, they will issue the individual with a notice of intention to transfer, which will set out the process and timescales for that transfer.
Scottish Ministers will use the information from DWP to make a determination without application of the individual’s entitlement to CDP on a like for like basis within 13 weeks. This 13 weeks can be extended if both Scottish Ministers and the Secretary of State for Work and Pensions agree there is good reason to do so. The determination of the individual’s entitlement to CDP will also end the corresponding award of DLAC. A determination of entitlement in respect of CDP made as a result of the case transfer process comes with the same rights to re-determination and appeal as any other determination made under section 52 of the Social Security (Scotland) Act 2018.
As there are some small differences in the eligibility criteria between DLAC and CDP, there may be some limited circumstances where an individual’s entitlement to CDP should be higher than their DLAC award. Where Social Security Scotland have identified such a case, either from the information provided by DWP or additional information from the individual, provision has been made to pay CDP at the relevant higher rate from the point of transfer.
Scottish Ministers will identify individuals who will transfer from DLAC to CDP using the residential address held by DWP in the individual’s DLAC record. An individual will be assumed to meet the residence and presence conditions for CDP at the point of transfer if they have a Scottish postcode. If Scottish Ministers determine after transfer that an individual should not have transferred because they fail to meet the residence and presence conditions, a PAPER 4 SSC/S5/21/6/4 further determination without application will be made that will end their CDP entitlement. This will also reverse the decision to end the individual’s DLAC award.
All individuals appointed by DWP in respect of a DLAC award will be temporarily deemed to act as an appointee for the purposes of CDP until it is reasonably practicable for Scottish Ministers to consider whether to make an appointment under the Social Security (Scotland) Act 2018.
Consultation Between 5 March and 28 May 2019, the Scottish Government undertook a public consultation on its proposals for the delivery of disability assistance. The consultation received 263 responses from individuals and stakeholder organisations, and a summary of these responses can be found in the analysis of written responses. The views expressed within the consultation responses helped shape the proposals for CDP, and the Scottish Government published its response in October 2019. Respondents were broadly supportive of the policy proposals, however, several changes were made in response to the consultation, including:
• extending the time limit for requesting a re-determination of a decision made by Social Security Scotland from 31 to 42 calendar days; • if Social Security Scotland is unable to complete a re-determination within 56 calendar days, an individual has a right to appeal to the First-Tier Tribunal for Scotland; • aligning the rules on payment of the care component when a child or young person is resident in a care home, a residential educational establishment, or is in legal detention • ensuring that children and young people in receipt of the mobility component can continue to be paid the mobility component when in legal detention.
Two surveys regarding the case transfer process was sent out to Experience Panel members in January and February 2019. 404 and 559 responses were received respectively. A series of individual and group interviews were also conducted. Results from both surveys and the interviews were published in 2019. These surveys confirmed that of most importance to panel members was that they continue to receive the correct payment at the correct time. Additionally, the Scottish Government has been working with relevant stakeholders to specifically target disabled people from seldom heard groups as part of its ongoing wider case transfer engagement. This user research and engagement with stakeholders has been key to developing a set of case transfer principles to guide the development of the approach to case transfer.
A policy position paper on case transfer was published in February 2019.
Officials met with the Disability and Carers Benefits Expert Advisory Group (DACBEAG) to discuss case transfer in June 2020. The Group provided their full advice in July.
Scottish Commission on Social Security The Scottish Government published draft regulations in December 2019. Under section 97 of the Social Security (Scotland) Act 2018, the Scottish Commission on Social Security (SCoSS) was asked to provide a scrutiny report on the regulations. In February 2020, the Scottish Government provided redrafted regulations to SCoSS, with a revised policy note to accompany the regulations. SCoSS published its draft scrutiny report on 9 March 2020, making 34 recommendations in relation to the draft regulations. PAPER 4 SSC/S5/21/6/4
A further draft of the regulations was formally referred to SCoSS on 29 October 2020 for a supplementary scrutiny report. SCoSS published its supplementary scrutiny report on 17 December 2020, 12 recommendations and four observations in relation to the draft regulations.
The Scottish Government will publish its formal response to both reports when laying these regulations before the Scottish Parliament.
The case transfer provisions were not included in the draft regulations SCoSS were asked to scrutinise. These provisions have been made under section 95 of the Social Security (Scotland) Act 2018, and therefore do not need to be referred to SCoSS for formal scrutiny.
Impact Assessments An Equalities Impact Assessment, Island Communities Impact Assessment, Fairer Scotland Duty Impact Assessment and a Children’s Rights and Wellbeing Impact Assessment were finalised in January 2021 and are provided with this instrument. It is anticipated from the analysis in these impact assessments that the commencement of CDP will have a broadly positive impact on a range of equalities groups, island communities and in relation to the realisation of children’s right and improving their wellbeing. There are no significant equalities or rights impacts that require further consideration in relation to the commencement of these regulations.
Financial Effects A Business and Regulatory Impact Assessment (BRIA) has been completed and is attached. The Scottish Government does not believe that CDP will have an adverse impact on the competitiveness of Scottish companies or the third sector within Scotland, the UK, or elsewhere in Europe or the rest of the world. The Scottish Government expects that there may be limited impact on the operational business of local authorities or health boards as a result of introducing this provision, principally because Social Security Scotland will seek to obtain (with the individual’s consent) information held by public sector bodies about the individual’s disability to make determinations of entitlement.
The right to appeal to a First-tier Tribunal is provided for in the Social Security (Scotland) Act 2018. Legal Assistance will continue to be available to individuals to appeal an entitlement decision to the Upper Tribunal, Court of Appeal or Supreme Court. The Scottish Government does not expect any adverse impact to the Legal Aid budget as a result of the introduction of CDP. Current recipients of DLAC are already able to access legal aid to appeal entitlement decisions.
Scottish Government Social Security Directorate
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SCOTTISH STATUTORY INSTRUMENTS
2021 No. 73
SOCIAL SECURITY
The Disability Assistance for Children and Young People (Consequential Amendment and Transitional Provision) (Scotland) Regulations 2021
Made - - - - 10th February 2021 Laid before the Scottish Parliament 12th February 2021 Coming into force - - 26th July 2021
The Scottish Ministers make the following Regulations in exercise of the powers conferred by section 95 of the Social Security (Scotland) Act 2018(a) and all other powers enabling them to do so.
Citation and commencement 1. These Regulations may be cited as the Disability Assistance for Children and Young People (Consequential Amendment and Transitional Provision) (Scotland) Regulations 2021 and come into force on 26 July 2021.
Amendment of the Council Tax (Discounts) (Scotland) Regulations 1992 2. In regulation 2(3)(c) (care workers) of the Council Tax (Discounts) (Scotland) Regulations 1992(b)— (a) omit “or” after head (iii), (b) after head (iiib), insert— “(iiic) the highest rate of the care component of child disability payment in accordance with regulation 11 (care component criterion: lowest, middle or highest rate care component) of the Disability Assistance for Children and Young People (Scotland) Regulations 2021(c), or short-term assistance in accordance with Part 1 of the schedule (short-term assistance) of those Regulations where the “earlier determination” referred to in paragraph 1(1)(a) of that schedule awarded the highest rate of the care component of child disability payment, or”.
(a) 2018 asp 9. (b) S.I. 1992/1409, as relevantly amended by S.I. 1994/629, S.I. 1997/587, S.S.I. 2013/65 and S.S.I. 2013/142. (c) S.S.I. 2021/XXX. Certified copy from legislation.gov.uk Publishing PAPER 5 SSC/S5/21/6/5
Amendment of the National Assistance (Assessment of Resources) Regulations 1992 3.—(1) The National Assistance (Assessment of Resources) Regulations 1992(a) are amended in accordance with paragraphs (2) to (4). (2) In regulation 2 (interpretation)(b)— (a) after the definition of “child benefit”, insert— ““child disability payment” means disability assistance for children and young people given in accordance with the Child Disability Payment Regulations, “Child Disability Payment Regulations” means the Disability Assistance for Children and Young People (Scotland) Regulations 2021(c),”, (b) after the definition of “severe disablement allowance”, insert— ““short-term assistance” means assistance given in accordance with Part 1 of the schedule of the Child Disability Payment Regulations,”. (3) In paragraph 3 of schedule 2 (sums to be disregarded in the calculation of earnings)(d)— (a) in sub-paragraph (2)(b)(i)— (i) after “attendance allowance,” insert “child disability payment,”, (ii) after “mobility supplement” for “or” substitute “,”, and (iii) after “severe disablement allowance” insert “or short-term assistance”, (b) before “; or” at the end of sub-paragraph (2)(b)(vi), insert— “, or (vii) would be in receipt of the care component of child disability payment had the amount of that component to which the individual is entitled not been reduced to £0 in accordance with regulation 17 (effect of admission to a care home on ongoing entitlement to care component) or regulation 20 (entitlement beginning while in alternative accommodation) of the Child Disability Payment Regulations due to the individual being resident in a care home for more than 28 days”, (c) after sub-paragraph (2), insert— “(3) In sub-paragraph (2)(b)(vii), “care home” has the meaning given in regulation 2 of the Child Disability Payment Regulations.”. (4) In schedule 3 (sums to be disregarded in the calculation of income other than earnings)(e)— (a) in paragraph 4, after “disability living allowance”, insert “, the mobility component of child disability payment, any payment of short-term assistance where the “earlier determination” mentioned in paragraph 1(1)(a) of Part 1 of the schedule (short-term assistance) of the Child Disability Payment Regulations awarded the mobility component of child disability payment”, (b) in paragraph 6— (i) omit “or” at the end of sub-paragraph (b), (ii) after sub-paragraph (c), insert— “, (d) the care component of child disability payment, or (e) any payment of short-term assistance where the “earlier determination” mentioned in paragraph 1(1)(a) of Part 1 of the schedule (short-term assistance) of the Child
(a) S.I. 1992/2977. (b) There are amendments to regulation 2 which are not relevant to these Regulations. (c) S.S.I. 2021/XXX. (d) As relevantly amended by S.I. 1993/2230 and S.I. 1995/858. (e) As relevantly amended by S.S.I. 2013/65.
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Disability Payment Regulations awarded the care component of child disability payment.”.
Amendment of the Advice and Assistance (Scotland) Regulations 1996 4.—(1) The Advice and Assistance (Scotland) Regulations 1996(a) are amended in accordance with paragraphs (2) and (3). (2) In regulation 16(b) (payment of fees and outlays from property recovered or preserved), after paragraph (2)(ca) insert— “(cb) to child disability payment given in accordance with the Disability Assistance for Children and Young People (Scotland) Regulations 2021(c) or short-term assistance given in accordance with Part 1 of the schedule (short-term assistance) of those Regulations,”. (3) In schedule 2(d) (assessment of disposable capital and disposable income), after paragraph 5(d)(a) insert— “(aza) child disability payment given in accordance with the Disability Assistance for Children and Young People (Scotland) Regulations 2021(e), (azb) short-term assistance given in accordance with Part 1 of the schedule of those Regulations,”.
Amendment of the Education (Student Loans) Regulations 1998 5. In the definition of “disability related benefits” in paragraph 1 of schedule 2 (terms of loans) of the Education (Student Loans) Regulations 1998(f), after “2011,” insert “child disability payment given in accordance with the Disability Assistance for Children and Young People (Scotland) Regulations 2021(g), short-term assistance given in accordance with Part 1 of the schedule (short-term assistance) of those Regulations,”.
Amendment of the Disabled Persons (Badges for Motor Vehicles) (Scotland) Regulations 2000 6.—(1) The Disabled Persons (Badges for Motor Vehicles) (Scotland) Regulations 2000(h) are amended in accordance with paragraphs (2) and (3). (2) In regulation 4(2)(i) (description of disabled persons) after sub-paragraph (ac) insert— “(ad) receives the higher rate of the mobility component of child disability payment in accordance with regulation 13 (mobility requirements: higher rate mobility component) of the Disability Assistance for Children and Young People (Scotland) Regulations 2021(j), or short-term assistance in accordance with Part 1 of the schedule (short-term assistance) of those Regulations where the “earlier determination” referred to in paragraph 1(1)(a) of that schedule awarded the higher rate of the mobility component of child disability payment,”. (3) In regulation 6(2)(b)(k) (fee for issue and period of issue of a badge)— (a) in the opening words, after “4(2)(a)” insert “, 4(2)(ad)”,
(a) S.I. 1996/2447. (b) As relevantly amended by S.S.I. 2013/142. (c) S.S.I. 2021/XXX. (d) As relevantly amended by S.S.I. 2013/142 and S.S.I. 2003/163. (e) S.S.I. 2021/XXX. (f) S.I. 1998/211, relevantly amended by S.S.I. 2013/142. (g) S.S.I. 2021/XXX. (h) S.S.I. 2000/59. (i) As relevantly amended by S.S.I. 2014/145. (j) S.S.I. 2021/XXX. (k) As relevantly amended by S.S.I. 2007/162.
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(b) in head (ii) after “allowance” insert “, the child disability payment, the short-term assistance”.
Amendment of the Repayment of Student Loans (Scotland) Regulations 2000 7. In the definition of “disability related benefit” in regulation 2 (interpretation) of the Repayment of Student Loans (Scotland) Regulations 2000(a), after “2011” insert “, child disability payment given in accordance with the Disability Assistance for Children and Young People (Scotland) Regulations 2021(b), short-term assistance given in accordance with Part 1 of the schedule (short-term assistance) of those Regulations”.
Amendment of the Civil Legal Aid (Scotland) Regulations 2002 8. In paragraph 7 of schedule 2 (rules for computing disposable income) of the Civil Legal Aid (Scotland) Regulations 2002(c), after sub-paragraph (h) insert— “(i) child disability payment given in accordance with the Disability Assistance for Children and Young People (Scotland) Regulations 2021(d), (j) short-term assistance given in accordance with Part 1 of the schedule (short-term assistance) of those Regulations.”.
Amendment of the Council Tax (Discounts) (Scotland) Consolidation and Amendment Order 2003 9. In article 4 (the severely mentally impaired) of the Council Tax (Discounts) (Scotland) Consolidation and Amendment Order 2003(e), after paragraph (2)(d), insert— “(da) the highest or middle rate of the care component of child disability payment in accordance with regulation 11 (care component criterion: lowest, middle or highest rate care component) of the Disability Assistance for Children and Young People (Scotland) Regulations 2021(f), or short-term assistance in accordance with Part 1 of the schedule (short-term assistance) of those Regulations where the “earlier determination” referred to in paragraph 1(1)(a) of that schedule awarded the highest or middle rate of the care component of child disability payment,”.
Amendment of the National Health Service (Travelling Expenses and Remission of Charges) (Scotland) (No. 2) Regulations 2003 10. In Table B in Part 2 of the schedule (calculation of requirements) of the National Health Service (Travelling Expenses and Remission of Charges) (Scotland) (No. 2) Regulations 2003(g), in column 2 of the entry which modifies the table in schedule 2 of the Income Support (General) Regulations 1987, in sub-paragraph (1)(b) of the substituted paragraph 13A, after head (ii) insert— “(iia) in receipt of the highest rate of the care component of child disability payment in accordance with regulation 11 (care component criterion: lowest, middle or highest rate care component) of the Disability Assistance for Children and Young People (Scotland) Regulations 2021(h) (or would be in receipt of that component at that rate had the amount of that component to which the claimant is entitled not been reduced to £0 in accordance with regulation 17 (effect of admission to a care home on ongoing entitlement to care
(a) S.S.I. 2000/110, relevantly amended by S.I. 2008/1879, S.S.I. 2013/65 and S.S.I. 2013/142. (b) S.S.I. 2021/XXX. (c) S.S.I. 2002/494, relevantly amended by S.S.I. 2013/65, S.S.I. 2013/142 and S.S.I. 2020/424. (d) S.S.I. 2021/XXX. (e) S.S.I. 2003/176, to which there are amendments not relevant to these Regulations. (f) S.S.I. 2021/XXX. (g) S.S.I. 2003/460, relevantly amended by S.S.I. 2008/390 and S.S.I. 2013/142. (h) S.S.I. 2021/XXX.
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component) or regulation 20 (entitlement beginning while in alternative accommodation) of those Regulations, where the claimant is resident in a care home), (iib) in receipt of short-term assistance in accordance with Part 1 of the schedule (short-term assistance) of those Regulations where the “earlier determination” referred to in paragraph 1(1)(a) of that schedule awarded the highest rate of the care component of child disability payment,”.
Amendment of the National Bus Travel Concession Scheme for Older and Disabled Persons (Eligible Persons and Eligible Services) (Scotland) Order 2006 11.—(1) Article 3 (eligible persons) of the National Bus Travel Concession Scheme for Older and Disabled Persons (Eligible Persons and Eligible Services) (Scotland) Order 2006(a) is amended in accordance with paragraphs (2) to (5). (2) In paragraph (b), after sub-paragraph (iiia), insert— “(iiib) the higher rate of the mobility component of child disability payment in accordance with regulation 13 (mobility requirements: higher rate mobility component) of the Child Disability Payment Regulations, or short-term assistance in accordance with Part 1 of the schedule (short-term assistance) of those Regulations where the “earlier determination” referred to in paragraph 1(1)(a) of that schedule awarded the higher rate of the mobility component of child disability payment, (iiic) the highest or middle rate of the care component of child disability payment in accordance with regulation 11 (care component criterion: lowest, middle or highest rate care component) of the Child Disability Payment Regulations, or short-term assistance in accordance with Part 1 of the schedule (short-term assistance) of those Regulations where the “earlier determination” referred to in paragraph 1(1)(a) of that schedule awarded the highest or middle rate of the care component of child disability payment,”. (3) In paragraph (k)— (a) omit “or” at the end of sub-paragraph (iv), (b) after sub-paragraph (v) insert— “, or (vi) are in receipt of the highest or middle rate of the care component of child disability payment given in accordance with regulation 11 (care component criterion: lowest, middle or highest rate care component) of the Child Disability Payment Regulations, or short-term assistance in accordance with Part 1 of the schedule (short-term assistance) of those Regulations where the “earlier determination” referred to in paragraph 1(1)(a) of that schedule awarded the highest or middle rate of the care component of child disability payment,”. (4) In paragraph (m), after sub-paragraph (iii) insert— “(iv) is in receipt of the highest or middle rate of the care component of child disability payment in accordance with regulation 11 (care component criterion: lowest, middle or highest rate care component) of the Child Disability Payment Regulations, or short-term assistance in accordance with Part 1 of the schedule (short-term assistance) of those Regulations where the “earlier determination” referred to in paragraph 1(1)(a) of that schedule awarded the highest or middle rate of the care component”.
(a) S.S.I. 2006/117, relevantly amended by S.S.I. 2013/65 and S.S.I. 2021/XXX.
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(5) After article 3, insert— “3A.—(1) Article 3 is to be interpreted in accordance with paragraphs (2) and (3). (2) References to “the Child Disability Payment Regulations” are to the Disability Assistance for Children and Young People (Scotland) Regulations 2021(a). (3) A person is to be regarded as being in receipt of a rate of the care component of child disability payment in accordance with the Child Disability Payment Regulations during any period in which the person would be in receipt of that rate were it not for— (a) regulation 17(2) (effect of admission to a care home on ongoing entitlement to care component) of those Regulations, or (b) regulation 20 (entitlement beginning while in alternative accommodation) of those Regulations, where the person is resident in a care home.”.
Amendment of the Representation of the People (Absent Voting at Local Government Elections) (Scotland) Regulations 2007 12. In paragraph (6) of regulation 8 (additional requirements for applications for a proxy vote for a particular or indefinite period on grounds of blindness or other disability) of the Representation of the People (Absent Voting at Local Government Elections) (Scotland) Regulations 2007(b)— (a) omit “or” at the end of sub-paragraph (a), and (b) after sub-paragraph (a) insert— “(aa) the applicant is in receipt of the higher rate of the mobility component of child disability payment (payable in accordance with regulation 13 of the Disability Assistance for Children and Young People (Scotland) Regulations 2021(c)), or short-term assistance (payable in accordance with Part 1 of the schedule (short- term assistance) of those Regulations) where the “earlier determination” referred to in paragraph 1(1)(a) of that schedule awarded the higher rate of the mobility component of child disability payment because of the disability specified in the application and makes a statement to that effect in the application, or”.
Amendment of the Council Tax Reduction (Scotland) Regulations 2012 13.—(1) The Council Tax Reduction (Scotland) Regulations 2012(d) are amended in accordance with paragraphs (2) to (7). (2) In regulation 2(1) (interpretation)(e), after the definition of “child benefit” insert— ““child disability payment” means— (a) disability assistance for children and young people given in accordance with the Disability Assistance for Children and Young People (Scotland) Regulations 2021(f) (and references to the care component of that payment are to be construed in accordance with regulation 2 of those Regulations), and (b) where short-term assistance is being given under Part 1 of the schedule of those Regulations (short-term assistance), the “earlier determination” referred to in paragraph 1(1)(a) of that schedule is to be deemed to continue in payment for the purposes of these Regulations,”.
(a) S.S.I. 2021/XXX. (b) S.S.I. 2007/170. (c) S.S.I. 2021/XXX. (d) S.S.I. 2012/303. (e) As relevantly amended by S.S.I. 2013/287. (f) S.S.I. 2021/XXX.
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(3) In regulation 28 (treatment of child care charges)(a)— (a) after paragraph (11)(f)(iv), insert— “(ivza) child disability payment,”, (b) in paragraph (14)(a), after “allowance” insert “, child disability payment”. (4) In regulation 67 (non-dependant deductions)(b)— (a) in paragraph (6)(b), after head (ii) insert— “(iiza) the care component of child disability payment,”, (b) in paragraph (9)(a), after “disability living allowance” insert “, child disability payment”. (5) In Part 3 (disability premiums) of schedule 1 (applicable amount)(c)— (a) in paragraph 8(2), after “the 1992 Act” insert “, the care component of child disability payment at the highest or middle rate”, (b) in paragraph 10(1)(a)(i), after “disability living allowance” insert “, child disability payment,”, (c) in paragraph 11(2)(a)(i), after “the 1992 Act” insert “, the care component of child disability payment at the highest or middle rate”, (d) in paragraph 11(2)(b)(i), after “the 1992 Act” insert “, the care component of child disability payment at the highest or middle rate”, (e) in paragraph 11(2)(b)(ii), after “the 1992 Act” insert “, the care component of child disability payment at the highest or middle rate”, (f) in paragraph 11(4)(a), after “the 1992 Act” insert “, the care component of child disability payment at the highest or middle rate”, (g) in paragraph 11(5)(a), after “the 1992 Act” insert “, the care component of child disability payment at the highest or middle rate”, (h) in paragraph 12(1)— (i) omit “or” at the end of head (b), and (ii) after head (b) insert— “(bza) the care component of child disability payment at the highest rate is payable, or would be payable were it not for regulation 17(2) (effect of admission to a care home on ongoing entitlement to care component) or regulation 20 (entitlement beginning while in alternative accommodation), where the child or young person is resident in a care home, of the Disability Assistance for Children and Young People (Scotland) Regulations 2021(d), in respect of a child or young person who is a member of the applicant’s family, or”, (i) in paragraph 13(a)— (i) after “disability living allowance” insert “, child disability payment”, (ii) after “such allowance” insert “or payment”. (6) In schedule 2 (amount of alternative maximum council tax reduction), in paragraph 2(a)(e) after “disability living allowance” insert “, child disability payment”. (7) In schedule 4 (sums to be disregarded in the calculation of income other than earnings), in paragraph 10(f) after “disability living allowance” insert “, child disability payment”.
(a) As relevantly amended by S.S.I. 2013/142. (b) As relevantly amended by S.S.I. 2013/142. (c) As relevantly amended by S.S.I. 2013/48 and S.S.I. 2013/142. (d) S.S.I. 2021/XXX. (e) As relevantly amended by S.S.I. 2013/142. (f) As relevantly amended by S.S.I. 2013/142.
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Amendment of the Council Tax Reduction (State Pension Credit) (Scotland) Regulations 2012 14.—(1) The Council Tax Reduction (State Pension Credit) (Scotland) Regulations 2012(a) are amended in accordance with paragraphs (2) to (9). (2) In regulation 2(1) (interpretation), after the definition of “child benefit” insert— ““child disability payment” means— (a) disability assistance for children and young people given in accordance with the Disability Assistance for Children and Young People (Scotland) Regulations 2021(b) (and references to the care component of that payment are to be construed in accordance with regulation 2 of those Regulations), and (b) where short-term assistance is being given under Part 1 of the schedule of those Regulations (short-term assistance), the “earlier determination” referred to in paragraph 1(1)(a) of that schedule is to be deemed to continue in payment for the purposes of these Regulations,”. (3) In regulation 27(1)(j) (meaning of “income”), after head (iii) insert— “(iiia) child disability payment,”. (4) In regulation 29(c) (treatment of child care charges)— (a) after paragraph (11)(f)(iv), insert— “(ivza) child disability payment;”, (b) in paragraph (14)(a), after “allowance” insert “, child disability payment”. (5) In regulation 48(d) (non-dependant deductions)— (a) in paragraph (6)(b)— (i) omit “or” at the end of head (ii), (ii) after head (ii) insert— “(iiza) the care component of child disability payment,”, (iii) at the end of head (iia) insert “or”, (b) in paragraph (9)(a), after “disability living allowance” insert “, child disability payment”. (6) In Part 3 (disability premiums) of schedule 1(e) (applicable amount)— (a) in paragraph 6(2), after “the 1992 Act” insert “, the care component of child disability payment at the highest or middle rate”, (b) in paragraph 7(2)(b)(ii), after “the 1992 Act” insert “the care component of child disability payment at the highest or middle rate”, (c) in paragraph 8(1),— (i) omit “or” at the end of head (a), (ii) after head (b) insert— “, or (c) the care component of child disability payment at the highest rate is payable, or would be payable were it not for regulation 17(2) (effect of admission to a care home on ongoing entitlement to care component) or regulation 20 (entitlement beginning while in alternative accommodation), where the person is resident in a care home, of the Disability Assistance for Children and Young People (Scotland)
(a) S.S.I. 2012/319. (b) S.S.I. 2021/XXX. (c) As relevantly amended by S.S.I. 2013/142. (d) As relevantly amended by S.S.I. 2013/49 and S.S.I. 2013/142. (e) As relevantly amended by S.S.I. 2013/49 and S.S.I. 2013/142.
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Regulations 2021, in respect of a child or young person who is a member of the applicant’s family.”, (d) in paragraph 9(a), after “disability living allowance” insert “, child disability payment”. (7) In schedule 2(a) (sums to be disregarded in the calculation of earnings), in paragraph 5(1)(a), after head (v) insert— “(va) child disability payment,”. (8) In Part 1 (capital to be disregarded) of schedule 4(b) (capital disregards), after paragraph 21(2)(e) insert— “(ea) child disability payment,”. (9) In schedule 5(c) (amount of alternative maximum council tax reduction), in paragraph 2(a) after “disability living allowance” insert “, child disability payment”.
Amendment of the Home Energy Assistance Scheme (Scotland) Regulations 2013 15.—(1) Regulation 6 (person eligible to apply for a grant) of the Home Energy Assistance Scheme (Scotland) Regulations 2013(d) is amended in accordance with paragraphs (2) to (5). (2) In paragraph (6)(a)— (a) omit “or” at the end of head (ii), (b) after head (ii) insert— “(iia) is or lives with a partner who is in receipt of the highest rate of the care component of child disability payment in accordance with regulation 11 (care component criterion: lowest, middle or highest rate care component) of the Disability Assistance for Children and Young People (Scotland) Regulations 2021(e) or the higher rate of the mobility component of child disability payment in accordance with regulation 13 (mobility requirements: higher rate mobility component) of those Regulations, or”. (3) In paragraph (6)(b), after “personal independence payment” insert “, child disability payment”. (4) In paragraph (8)(b), after “personal independence payment” insert “, child disability payment”. (5) In paragraph (9), after sub-paragraph (d) insert— “(da) child disability payment given in accordance with the Disability Assistance for Children and Young People (Scotland) Regulations 2021(f),”.
Amendment of the Children’s Legal Assistance (Scotland) Regulations 2013 16. In paragraph 5 of schedule 1 (assessment of disposable income for the purposes of children’s legal aid) of the Children’s Legal Assistance (Scotland) Regulations 2013(g), after sub-paragraph (h) insert— “(i) child disability payment given in accordance with the Disability Assistance for Children and Young People (Scotland) Regulations 2021(h), (j) short-term assistance given in accordance with Part 1 of the schedule (short-term assistance) of those Regulations.”.
(a) As relevantly amended by S.S.I. 2013/142. (b) As relevantly amended by S.S.I. 2013/142 and S.S.I. 2017/236. (c) As relevantly amended by S.S.I. 2013/142. (d) S.S.I. 2013/148, relevantly amended by S.S.I. 2013/253. (e) S.S.I. 2021/XXX. (f) S.S.I. 2021/XXX. (g) S.S.I. 2013/200, relevantly amended by S.S.I. 2020/424. (h) S.S.I. 2021/XXX.
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Amendment of the Scottish Parliament (Elections etc.) Order 2015 17. In paragraph 5(6) of schedule 3 (absent voting) of the Scottish Parliament (Elections etc.) Order 2015(a)— (a) omit “or” at the end of head (a), (b) after head (a) insert— “(aa) the application states that the applicant is in receipt of the higher rate of the mobility component of child disability payment (payable in accordance with regulation 13 of the Disability Assistance for Children and Young People (Scotland) Regulations 2021(b)), or short-term assistance (payable in accordance with Part 1 of the schedule (short-term assistance) of those Regulations) where the “earlier determination” referred to in paragraph 1(1)(a) of that schedule awarded the higher rate of the mobility component of child disability payment because of the disability specified in the application, or”.
Amendment of the Winter Heating Assistance for Children and Young People (Scotland) Regulations 2020 18.—(1) The Winter Heating Assistance for Children and Young People (Scotland) Regulations 2020(c) are amended in accordance with paragraphs (2) to (4). (2) In regulation 2 (interpretation)— (a) after the definition of “the 2018 Act”, insert— ““the 2021 Regulations” means the Disability Assistance for Children and Young People (Scotland) Regulations 2021(d)”, (b) after the definition of “child”, insert— ““Child Disability Payment” means disability assistance for children and young people given in accordance with the 2021 Regulations,”. (3) In regulation 4 (eligibility rules for child winter heating assistance)— (a) for paragraph (1)(b) substitute— “(b) entitled to receive payment of the highest rate of the care component of— (i) Disability Living Allowance, or (ii) Child Disability Payment, and”, (b) in paragraph (2), for “paragraph (1)(b)” substitute “paragraph (1)(b)(i)”, and (c) after paragraph (2), insert— “(3) For the purposes of the rule in paragraph (1)(b)(ii), an individual is to be treated as being entitled to receive payment even if, throughout the qualifying week— (a) regulation 17(2) (effect of admission to a care home on ongoing entitlement to care component) of the 2021 Regulations applies to the individual, or (b) regulation 20 (entitlement beginning while in alternative accommodation) of the 2021 Regulations applies to the individual due to the individual being resident in a care home. (4) In paragraph (3), “care home” has the meaning given in regulation 2 of the 2021 Regulations.”.
(a) S.S.I. 2015/425, to which there are amendments not relevant to these Regulations. (b) S.S.I. 2021/XXX. (c) S.S.I. 2020/352. (d) S.S.I. 2021/XXX.
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(4) In regulation 8(b) (determination following backdated award of assistance), for sub- paragraph (i) substitute— “(i) following an appeal, an award of the highest rate of the care component of— (aa) Disability Living Allowance, or (bb) Child Disability Payment, is made that is a backdated award, and”.
Transitional provision – extinguishment of right to apply for Disability Living Allowance 19.—(1) No person may claim disability living allowance who is under the age of 16 years and— (a) during the initial period for applications for child disability payment, is resident in the local authority area of Perthshire and Kinross, City of Dundee or the Western Isles, or (b) after the expiry of that period— (i) is resident in Scotland, or (ii) is a person to whom regulation 5(4) or (6) (residence and presence conditions – individuals resident in Ireland, members of Her Majesty’s forces and civil servants) or regulation 9 (persons residing outside the United Kingdom to whom a relevant EU regulation applies) of the Child Disability Payment Regulations applies. (2) Paragraph (1) does not apply to a person who has an award of disability living allowance which is of— (a) both the mobility component and the care component and the award in respect of either or both is for a fixed term period, or (b) one of those components only and the award is for a fixed term period, if the person has been notified by the Secretary of State for Work and Pensions that, because the fixed term period is due to come to an end, the person needs to claim disability living allowance again, or to apply for a supersession of the award, if the person wishes to continue to be entitled to disability living allowance in respect of the component or components subject to the fixed term period. (3) In this regulation— “child disability payment” means disability assistance for children and young people given in accordance with the Child Disability Payment Regulations, “Child Disability Payment Regulations” means the Disability Assistance for Children and Young People (Scotland) Regulations 2021(a), “disability living allowance” means a disability living allowance under section 71 of the Social Security Contributions and Benefits Act 1992(b), “initial period for applications” means the period referred to in regulation 44 (transitory provision – initial period for applications) of the Child Disability Payment Regulations, beginning with 26 July 2021 and ending with 21 November 2021.
SHIRLEY-ANNE SOMERVILLE A member of the Scottish Government St Andrew’s House, Edinburgh 10th February 2021
(a) S.S.I. 2021/XXX. (b) 1992 c.4.
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EXPLANATORY NOTE (This note is not part of the Regulations) These Regulations make consequential and transitional provision in connection with the introduction of a new form of disability assistance, known as child disability payment, under section 31 of the Social Security (Scotland) Act 2018 (“the 2018 Act”). The child disability payment is provided for by the Disability Assistance for Children and Young People (Scotland) Regulations 2021 (“the Child Disability Payment Regulations”), along with an associated form of short-term assistance under section 36 of the 2018 Act that is payable in certain circumstances when an individual’s award of child disability payment is under review within the meaning of schedule 10 of that Act. Regulations 2 to 18 make consequential amendments to secondary legislation in connection with the introduction of child disability payment. The amendments ensure that individuals who are entitled to child disability payment have the same entitlements and disregards under that legislation as individuals who are entitled to disability living allowance (“DLA”) payable under the Social Security Contributions and Benefits Act 1992. Child disability payment will replace DLA in Scotland for new applicants, and as such these Regulations also make provision in connection with the transition from the pre-existing statutory framework for disability benefits in Scotland to that provided for under the 2018 Act and Child Disability Payment Regulations. Regulation 19 provides that no person under the age of 16 years who is able to apply for Child Disability Payment due to being resident in Scotland, or in some circumstances being resident outwith Scotland and having a genuine and sufficient link to Scotland, may now apply for DLA. A business and regulatory impact assessment has been prepared for these Regulations and placed in the Scottish Parliament Information Centre. Copies can be obtained from the Scottish Government Social Security Directorate, Victoria Quay, Edinburgh, EH6 6QQ and online at www.legislation.gov.uk.
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POLICY NOTE
THE DISABILITY ASSISTANCE FOR CHILDREN AND YOUNG PEOPLE (CONSEQUENTIAL AMENDMENT AND TRANSITIONAL PROVISION) (SCOTLAND) REGULATIONS 2021
SSI 2021/73
The above instrument was made in exercise of the powers conferred by section 95 of the Social Security (Scotland) Act 2018. The instrument is subject to the negative procedure.
The purpose of this instrument is to make consequential amendments and transitional provision in connection with the introduction of a new form of disability assistance, known as Child Disability Payment (CDP). CDP will eventually replace Disability Living Allowance for Children (DLAC) in Scotland. The purpose of the instrument is to allow certain passported benefits, exemptions, concessions and reliefs to apply to individuals who are entitled to CDP so that these individuals are passported to the same benefits, and qualify for the same exemptions, concessions and reliefs, as individuals with an equivalent DLAC award. The purpose of the instrument is also to stop individuals under the age of 16 years from being entitled to apply for DLAC if they are able to apply for CDP.
Policy Objectives Social Security Scotland is an Executive Agency of the Scottish Government and will eventually be making payments to 1.4 million citizens in Scotland, with a value in excess of £3 billion per year. The Scottish Government will, in coming years, be responsible for delivering benefits for disabled people, to replace the current disability benefits delivered by the Department for Work and Pensions. The first such benefit, Child Disability Payment (CDP), will replace Disability Living Allowance for Children (DLAC) from summer 2021.
CDP will broadly follow the eligibility criteria for DLAC, however, the upper age limit will be extended from 16 to 18, for those young people who are in receipt of CDP immediately before their sixteenth birthday.
The Scottish Government is committed to delivering a safe and secure transition for disabled people whose entitlement will be transferred from DWP to Social Security Scotland. As part of that approach, the Scottish Government intends that certain benefits, exemptions, concessions and reliefs available to an individual who is entitled to DLAC should also be available to an individual who is entitled to an equivalent CDP award.
Because social security interacts with a number of devolved areas, the following allowances, disregards or premiums are within the scope of these regulations:
• Absent voting at Scottish Parliamentary and local government elections; • Entitlement to Advice and Assistance (under the Legal Aid (Scotland) Act 1986); • Children’s Legal Assistance; • Civil Legal Aid; • Council tax reduction (for both adult and pension-age people); • Council tax exemption and council tax discount; • Disabled Person’s Parking Badge (blue badge); • National concessionary travel scheme (bus passes); • NHS travelling expenses and fees; PAPER 5 SSC/S5/21/6/5
• Entitlement to Child Winter Heating Assistance; • Entitlement to apply for government grants to improve home energy efficiency; • Repayment of student loans; and • The disregard of income for the purposes of assessing an individual’s liability to pay residential care home charges.
These regulations are intended only to ensure that where Scottish regulations refer to DLAC, there should also be a corresponding reference to Child Disability Payment or ‘short-term assistance’ (STA). STA is assistance that an individual can elect to receive if they are appealing to Social Security Scotland, or to the First-Tier Tribunal for Scotland, against a decision to stop or reduce their entitlement to assistance under Part 2 of the Social Security (Scotland) Act 2018. STA is not available for first-time applicants and is unique to the Scottish Social Security System. Because STA can be paid in respect of more than one form of devolved assistance, the provision makes clear that the scope of the amendment extends only to circumstances where STA is paid as a result of a qualifying CDP award being stopped or reduced. This fulfils the secondary policy objective of individuals in receipt of STA benefiting from the same income disregards and entitlements as they would have but for their CDP award being stopped or reduced.
As CDP will replace DLAC in Scotland for new applicants, this instrument makes transitional provision to remove the right of individuals under the age of 16, who are able to apply for CDP, from applying for DLAC.
Consultation In July 2016 the Scottish Government launched a public consultation to support the development of a framework that would become the Social Security (Scotland) Bill. This received more than 200 responses to questions relating to disability benefits with an even split between organisational and individual responses. In particular comments were invited on a partial Equality Impact Assessment which represented the Scottish Government’s work on the impact of social security policy on people with protected characteristics prior to the consultation.
521 formal written responses were submitted, of which 241 were from organisations and 280 from individual respondents. Of the 241 organisational responses, 81 were received from stakeholder groups relating to children/young people, equalities and human rights, disability and long term conditions and carers. The independent analysis of the responses along with the Scottish Government response were published on 22 February 2017.1
Between 5 March and 28 May 2019, the Scottish Government undertook a public consultation on its proposals for the delivery of disability assistance. The consultation received 263 responses from individuals and stakeholder organisations, and a summary of these responses can be found in the analysis of written responses. The views expressed within the consultation responses helped shape the proposals for CDP, and the Scottish Government published its response in October 2019.
Impact Assessments These Regulations do not seek to substantively change the nature of the policy areas that the Regulations interact with. Impact assessments for the individual policy areas affected will be published on the Scottish Government website where appropriate.
1 https://www.gov.scot/publications/analysis-written-responses-consultation-social-security-scotland/ PAPER 5 SSC/S5/21/6/5
The Disability Assistance for Children and Young People (Scotland) Regulations 2021 are being laid contemporaneously with this instrument, with a number of impact assessments relevant to the introduction of CDP.
Financial Effects A partial Business and Regulatory Impact Assessment (BRIA) has been completed. The impact of this policy on business is limited and no quantifiable financial effects have been identified.
Scottish Government Social Security Directorate
February 2021 PAPER 6 SSC/S5/21/6/6
Social Security Committee
6th Meeting, 2021 (Session 5), Thursday 4 March 2021
Subordinate Legislation
Overview of instrument 1. The Committee has been designated as lead for consideration of the following affirmative instrument:
The Social Security Information-sharing (Scotland) Regulations 2021
2. The Cabinet Secretary for Social Security and Older People will attend the meeting to move the motion to approve. The instrument and policy note are attached.
Purpose of the Regulations 3. The regulations specify three additional persons (GP practices, the Public Guardian and accredited vehicles suppliers for persons with disabilities) who may be required to supply information to the Scottish Ministers for use by Ministers in carrying out their social security functions. 4. Scottish Ministers will also be able to share information with local authorities for the purposes of deciding entitlement to other schemes such as council tax reduction, Scottish Welfare Fund, discretionary housing payments, housing benefit, Blue Badges and concessionary travel.
Delegated Powers and Law Reform Committee consideration 5. The DPLR Committee considered the instrument at its meeting on 23 February 2021 and did not raise any issues.
For Decision 6. Is the Committee content to recommend approval of this instrument?
PAPER 7 SSC/S5/21/6/7 Cabinet Secretary for Social Security and Older People Shirley-Anne Somerville MSP T: 0300 244 4000 E: [email protected]
Bob Doris MSP Convener Social Security Committee The Scottish Parliament Horse Wynd EDINBURGH EH99 1SP
___ 15 February 2021
Dear Convener
This letter is to inform you that Scottish Ministers laid the Social Security Information-sharing (Scotland) Regulations 2021 and accompanying documents in Parliament on 12 February. The Regulations will provide Scottish Ministers with information-sharing powers that will be necessary to support the launch of Scottish disability benefits this year.
As you know, the Scottish Government is committed to supporting people who apply for disability assistance by offering to gather supporting information on the individual’s behalf, making the application process as simple for the individual as possible. Social Security Scotland will also support individuals who receive disability assistance by enabling the sharing of information with a local authority if the individual applies for a form of local authority assistance that is enabled by receiving disability assistance. The Regulations will make provision to enable this sharing.
Regulation 2 will expand the persons from whom Scottish Ministers can already require social security information to be shared under section 85(2) of the Social Security (Scotland) Act 2018 (‘the Act’). This includes GP practices, suppliers of vehicles under the accessible vehicles and equipment (AVE) scheme and the Public Guardian (Scotland), which will enable Social Security Scotland to gather information from these persons on behalf of individuals who apply for disability assistance.
Regulation 4 specifies a number of local authority functions for which Social Security Scotland may share social security information with local authorities. The functions all pertain to forms of assistance a Scottish local authority can provide to individuals that may require the local authority to consider the individual’s disability benefit entitlements. Scottish local authorities currently receive this information from DWP, therefore this Regulation is necessary to ensure Scottish individuals receiving disability benefits do not become disadvantaged by the devolution of disability benefits.
Scottish Ministers, special advisers and the Permanent Secretary are covered by the terms of the Lobbying (Scotland) Act 2016. See www.lobbying.scot
St Andrew’s House, Regent Road, Edinburgh EH1 3DG www.gov.scot PAPER 7 SSC/S5/21/6/7 In recognition of the potential privacy and confidentiality concerns that may arise when personal information is shared, Regulations 3 and 5 place limitations on the information sharing that will ensure the privacy and confidentiality of individuals is safeguarded through imposing express limitatons on the extent of information-sharing. Regulation 3 ensures that when information is gathered from health boards, GP practices or local authorities to support an individual’s disability benefit application, the sharing of information needed to allow that gathering to happen may only take place with the express authorisation of that individual. Regulations 3 and 5 require that the information being shared must be no more than is necessary for the purpose for which it will be used by the recipient.
The provisions in the Regulations have been informed by user feedback and recommendations from the Disability and Carers Benefits Expert Advisory Group. Consultation has taken place with the persons named in the Regulations and with the Information Commissioner’s Office, and the Law Officers, all of whom responded positively to the provisions in the Regulations and the operational preparations that are underway.
I look forward to appearing before Committee to give evidence on the draft Regulations, in due course.
Yours sincerely
SHIRLEY-ANNE SOMERVILLE
Scottish Ministers, special advisers and the Permanent Secretary are covered by the terms of the Lobbying (Scotland) Act 2016. See www.lobbying.scot
St Andrew’s House, Regent Road, Edinburgh EH1 3DG www.gov.scot
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Draft Regulations laid before the Scottish Parliament under section 96(2) of the Social Security (Scotland) Act 2018 for approval by resolution of the Scottish Parliament
DRAFT SCOTTISH STATUTORY INSTRUMENTS
2021 No.
SOCIAL SECURITY
The Social Security Information-sharing (Scotland) Regulations 2021
Made - - - - 2021 Coming into force - - 26th July 2021
The Scottish Ministers make the following Regulations in exercise of the powers conferred by sections 85(2)(g) and (5) and 95 of the Social Security (Scotland) Act 2018(a) and all other powers enabling them to do so.
In accordance with section 96(2) of that Act, a draft of this instrument has been laid before and approved by resolution of the Scottish Parliament.
Citation, commencement and interpretation 1.—(1) These Regulations may be cited as the Social Security Information-sharing (Scotland) Regulations 2021 and come into force on 26 July 2021. (2) In these Regulations— “the 1978 Act” means the National Health Service (Scotland) Act 1978(b), “the 2018 Act” means the Social Security (Scotland) Act 2018, “the Public Guardian” is to be construed in accordance with section 6 of the Adults with Incapacity (Scotland) Act 2000(c) (the Public Guardian and his functions).
Specification of persons who may be required to supply information 2.—(1) The persons described in paragraph (2) are specified for the purposes of section 85(2)(g) of the 2018 Act (persons who may be required to supply information). (2) The persons are— (a) any supplier of vehicles approved by the Scottish Ministers under an accreditation scheme run by Ministers to supply vehicles for the benefit of individuals who are entitled to the higher rate of the mobility component of Child Disability Payment in accordance
(a) 2018 asp 9. The powers to make these Regulations are exercised together by virtue of section 33(2) of the Interpretation and Legislative Reform (Scotland) Act 2010 (asp 10). These Regulations are subject to the affirmative procedure by virtue of section 33(3) of that Act. (b) 1978 c.29. (c) 2000 asp 4. Section 6 was amended by section 67 and paragraph 5(a) of schedule 1 of the Adult Support and Protection (Scotland) Act 2007 (asp 10) and S.S.I. 2015/157. Certified copy from legislation.gov.uk Publishing PAPER 8 SSC/S5/21/6/8
with regulation 13 of the Disability Assistance for Children and Young People (Scotland) Regulations 2021(a) (mobility requirements: higher rate mobility component), (b) the contractor under a general medical services contract within the meaning of section 17J of the 1978 Act(b) (Health Boards’ power to enter into general medical services contracts), (c) the contractor under an arrangement under section 2C(2) of the 1978 Act(c) (functions of Health Boards: primary medical services), (d) the provider under an agreement under section 17C(1)(a) of the 1978 Act(d) (agreement for provision of primary medical services), and (e) the Public Guardian.
Supplying information to receive information in return 3.—(1) Paragraph (2) applies where the Scottish Ministers require information to be supplied under section 85(1) of the 2018 Act (requirement to supply information) by— (a) a Health Board constituted under section 2(1)(a) of the 1978 Act(e) (Health Boards) or a Special Health Board constituted under section 2(1)(b) of the 1978 Act(f), (b) a contractor or provider of primary medical services described in regulation 2(2)(b), (c) or (d), or (c) a local authority, for the purpose of determining an individual’s entitlement to social security assistance in accordance with section 37 of the 2018 Act (duty to make determination). (2) The Scottish Ministers may supply to the person such information relating to the individual as is necessary for the purpose of enabling the person to comply with the requirement under section 85(1) of the 2018 Act. (3) Information may be supplied by the Scottish Ministers under paragraph (2) only with the authorisation of the individual to whom the information relates.
Use of information supplied by the Scottish Ministers 4.—(1) Information held by the Scottish Ministers for the purpose of a social security function may be supplied by Ministers under section 85(5) of the 2018 Act (specification of functions) to— (a) a supplier of vehicles described in regulation 2(2)(a) for use for the purposes of the function of that person specified in paragraph (2), (b) a local authority for use for the purposes of the functions of the local authority specified in paragraph (3). (2) The specified function referred to in paragraph (1)(a) is the provision of a vehicle.
(a) S.S.I. 2021/XX. (b) Section 17J was inserted by section 4 of the Primary Medical Services (Scotland) Act 2004 (asp 1) (“the 2004 Act”). (c) Section 2C was inserted by section 1(2) of the 2004 Act. Section 2C(2) was amended by section 37(a) of the Tobacco and Primary Medical Services (Scotland) Act 2010 (asp 3). (d) Section 17C was inserted by section 21(2) of the National Health Service (Primary Care) Act 1997 (c.46). Section 17C(1)(a) was amended by section 2(2)(a) of the 2004 Act. (e) Section 2(1)(a) was amended by paragraph 1 of schedule 7 of the Health and Social Services and Social Security Adjudications Act 1983 (c.41), section 28(a)(i) and (ii) of the National Health Service and Community Care Act 1990 (c.19), paragraph 1(2)(a) of schedule 1 of the National Health Service Reform (Scotland) Act 2004 (asp 7) and paragraph 2(2) of schedule 2 of the Smoking, Health and Social Care (Scotland) Act 2005 (asp 13). (f) Section 2(1)(b) was inserted by section 28(a)(ii) of the National Health Service and Community Care Act 1990 (c.19). It was amended by paragraph 2(2) of schedule 2 of the Smoking, Health and Social Care (Scotland) Act 2005 (asp 13).
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(3) The specified functions referred to in paragraph (1)(b) are— (a) the assessment of liability to pay local taxes used to fund local authority expenditure, (b) the administration under section 134(1) of the Social Security Administration Act 1992(a) (arrangements for housing benefit) of housing benefit provided by virtue of a scheme under section 123(1)(d) of the Social Security Contributions and Benefits Act 1992(b) (income-related benefit), (c) the administration of the national travel concession scheme provided for by the National Bus Travel Concession Scheme for Older and Disabled Persons (Scotland) Order 2006(c), (d) the administration of a travel concession scheme established under section 93 of the Transport Act 1985(d) (travel concession schemes), (e) determining whether a person falls within the description of person prescribed for the purposes of section 21(2) of the Chronically Sick and Disabled Persons Act 1970(e) (issue of badges for display on motor vehicles to disabled persons falling within prescribed descriptions) by regulation 4(2)(ad) of the Disabled Persons (Badges for Motor Vehicles) (Scotland) Regulations 2000(f) (descriptions of disabled persons), (f) determining whether to provide occasional financial or other assistance for the purpose described in section 2(1)(a) or (b) of the Welfare Funds (Scotland) Act 2015(g) (use of welfare funds: assistance for short term need and community care), (g) determining— (i) whether to make discretionary housing payments under regulation 2(1) of the Discretionary Financial Assistance Regulations 2001(h) (provision of additional financial assistance towards meeting housing costs), (ii) the amount of any such payments. 5. Where the Scottish Ministers supply information under these Regulations, which relates to an individual, the information supplied must be no more than is necessary for the purpose for which it is to be used by the recipient.
Name A member of the Scottish Government St Andrew’s House, Edinburgh Date
(a) 1992 c.5. Section 134 was substituted by paragraph 1(2) of schedule 12 of the Housing Act 1996 (c.52). (b) 1992 c.4. (c) S.S.I. 2006/107. (d) 1985 c.67. Section 93, as it applies to Scotland, was amended by paragraph 141 of schedule 13 of the Local Government etc. (Scotland) Act 1994 (c.39), S.I. 1996//974, section 44(1) of the Local Government in Scotland Act 2003 (asp 1) and section 49(2) of the Transport (Scotland) Act 2019 (asp 17). (e) 1970 c.44. (f) S.S.I. 2000/59. Sub-paragraph (ad) was inserted by S.S.I. 2021/73. (g) 2015 asp 5. (h) S.I. 2001/1167. Regulation 2(1) was amended by S.I. 2013/1139 and S.I. 2013/458.
3 Certified copy from legislation.gov.uk Publishing PAPER 8 SSC/S5/21/6/8
EXPLANATORY NOTE (This note is not part of the Regulations) These Regulations make provision regarding the sharing of information in connection with the social security functions of the Scottish Ministers, in accordance with section 85 of the Social Security (Scotland) Act 2018 (“the 2018 Act”). Regulation 2 specifies, for the purposes of section 85(2) of the 2018 Act, three additional persons who may be required by the Scottish Ministers to supply information to them for the purpose of a social security function. These are GP practices, the Public Guardian and suppliers of vehicles for the benefit of individuals who are entitled to the mobility component of Child Disability Payment, at the higher rate. Regulation 3 provides an express power for the Scottish Ministers to share information with local authorities, Health Boards and GP practices, in order to receive from them information required under section 85(1) of the 2018 Act. This reflects the substantive nature of the information which may be shared. Regulation 4 provides that information held by the Scottish Ministers for the purpose of a social security function may be supplied by them, under section 85(5) of the 2018 Act, for the purposes of a specified function to a supplier of vehicles described in regulation 2 and to a local authority. The specified function in respect of a supplier of vehicles is the provision of a vehicle. The specified functions in relation to local authorities, include establishing entitlement to council tax reduction and other forms of concession related to local taxes, establishing entitlement to a Blue Badge, and reaching decisions on making discretionary housing payments. Regulation 5 makes clear that no more information may be supplied than is necessary to enable a specified person to fulfil a particular function or, as the case may be, to enable them to supply the information which is required from them under section 85(1) of the 2018 Act.
4 PAPER 8 SSC/S5/21/6/8
POLICY NOTE
THE SOCIAL SECURITY INFORMATION-SHARING (SCOTLAND) REGULATIONS 2021
SSI 2021/XX
The above instrument will, if approved by the Scottish Parliament, be made in exercise of the powers conferred by sections 85(2)(g) and (5) and 95 of the Social Security (Scotland) Act 2018. Regulations made under section 85(2)(g) and (5) attract the affirmative procedure, while regulations under section 95 will, in this instance, attract the negative procedure. Applying section 33(1) of the Interpretation and Legislative Reform (Scotland) Act 2010, the combined use of these powers mean that the instrument is subject to the affirmative procedure.
Purpose of the instrument The Regulations specify three additional persons for the purposes of section 85(2) of the Social Security (Scotland) Act 2018, who may be required to supply information to the Scottish Ministers for use by Ministers in carrying out their social security functions.
The Regulations further specify, for the purposes of section 85(5) of the 2018 Act, a number of functions of local authorities in connection with the fulfilment of which the Scottish Ministers may share information with those other persons.
Policy Objectives Social Security Scotland is an Executive Agency of the Scottish Government and will eventually be making payments to 1.4 million citizens in Scotland, with a value in excess of £3 billion per year. The Scottish Government will, in coming years, be responsible for delivering benefits for disabled people, to replace the current disability benefits delivered by the Department for Work and Pensions on behalf of the UK Government. The first such benefit, Child Disability Payment, will replace Disability Living Allowance for Children (DLAC) from summer 2021.
The Scottish Government is committed to delivering a system of social security founded on core principles of fairness, dignity and respect. As part of that approach, this new social security system will rely upon the ability of Social Security Scotland to obtain information from others in order to make determinations of entitlement to benefits, and to make the application process for those benefits as simple as possible for individuals.
The persons specified in the Regulations may be required to supply data to the Scottish Ministers: (i) in relation to an individual’s application; (ii) to support individuals who apply for social security assistance and wish for the supporting information necessary for their application to be supplied by the person on their behalf, in an open, transparent and client-led way; and (iii) to verify information for the prevention or identification of error.
The Regulations specify, for the purposes of section 85(2) of the Social Security (Scotland) Act 2018, three additional persons who may be required to supply information. These are GP PAPER 8 SSC/S5/21/6/8 practices, the Public Guardian and accredited suppliers of modified vehicles for persons with disabilities. These are persons over and above those already specified on the face of section 85(2).
In particular, the newly devolved disability benefits will rely upon information supplied by health, education and social care professionals, in order to obtain a more complete picture about an individual’s disability. This will include, with the agreement of the individual, assisting individual applicants to obtain existing information by contacting GP practices, NHS boards, education authorities, and local authority social work departments. It may also include co-ordinating provision of modified vehicles by accredited vehicle suppliers through a devolved Accessible Vehicle and Equipment (AVE) scheme to clients who choose to have their benefit entitlement delivered in that manner. Clients using the AVE scheme will choose which supplier they wish to purchase from and that supplier will confirm certain benefits information with Social Security Scotland so that the client can enter into a contract for a mobility vehicle with the supplier without delays.
It will also be necessary for Social Security Scotland to check the extent of the powers of guardians and those with powers of attorney who act on the behalf of a client, to ensure they have the necessary power to act in such a way. This will require information sharing between Social Security Scotland and the Office of the Public Guardian.
There will also be a need for Social Security Scotland to share information with other persons in order to allow those persons to fulfil their legal duties, and to process information about individuals in order to determine their eligibility for services, grants, concessions or discounts administered by those persons. Specifically, Scottish Local Authorities may need to confirm with Social Security Scotland whether an individual is in receipt of a certain disability benefit, and at what level, in order to deliver entitlement to the following services lawfully and in accordance with the Scottish Public Finance Manual1: • assessing whether a disabled individual is eligible for council tax reduction; • assessing what level of Housing Benefit the individual is entitled to; • deciding what assistance to provide to an individual applying for a Crisis Grant or Community Care Grant from the Scottish Welfare Fund; • deciding what level of Discretionary Housing Payment to provide to an individual who applies, including assessing the correct level of top-up funding when mitigating the so-called ‘bedroom tax’ and benefit cap; • establishing whether an individual is entitled to a Blue Badge; • administrating the national concessionary travel scheme or, as the case may be, a local travel concession scheme run by the relevant local authority.
The local authority functions listed above, along with the function of suppliers providing modified vehicles, are specified for the purposes of section 85(5) of the Social Security (Scotland) Act 2018. This sharing of information is intended to aid, for individuals, the process of obtaining other forms of benefit and concession and of being made aware of what is available. Individuals are informed at the point they apply for a disability benefit that information about their entitlement to that benefit may be shared with the parties noted above for the reasons noted above. They are given the opportunity to object and so opt out of that sharing should they wish and are reminded about how their information may be used and shared whenever Social Security Scotland communicates with them formally. Information
1 https://www.gov.scot/publications/scottish-public-finance-manual/ PAPER 8 SSC/S5/21/6/8 will only be shared with local authorities when the individual applies for some form of benefit or concession from a local authority, or shared with accredited vehicle supplies when the individual applies for a modified vehicle from an accredited supplier. A local authority may use the information provided to work out what else a person may be entitled to, over and above the particular concession or benefit applied for.
Information-sharing limitations on the face of the Regulations
The Regulations contain provision to the effect that:
• information may only be shared with a local authority, Health Board or GP practice, for the purpose of receiving information in return, if the individual to whom the information relates has given their authorisation for that to happen. This reflects the sensitive nature of the information which may be shared with those persons. It is likely to go further than basic personal details to identify an individual, perhaps covering information given on an application form regarding the effects of a condition.
• where Scottish Ministers supply any information relating to an individual, the information supplied must always be no greater than is necessary to support the purpose for which it is to be used by the recipient. The purpose may be to provide information that has been required from them, most likely in connection with the making of a determination by Ministers of an individual’s entitlement to social security assistance. Alternatively it may enable the recipient to work out an individual’s entitlement to some other form of provision, such as housing benefit.
• These provisions – in regulations 3 and 5 – are made under section 95 of the Social Security (Scotland) Act 2018. They aim to ensure that information -sharing takes place within appropriate parameters, proportionate to the overarching aim of facilitating access to social security assistance, and other forms of benefit and concession flowing from entitlement to social security assistance. This is line with the right to private and family life in Article 8 of the European Convention on Human Rights.
Consultation In July 2016 the Scottish Government launched a public consultation to support the development of a framework that would become the Social Security (Scotland) Bill. This received more than 200 responses to questions relating to disability benefits with an even split between organisational and individual responses. In particular comments were invited on a partial Equality Impact Assessment which represented the Scottish Government’s work on the impact of social security policy on people with protected characteristics prior to the consultation.
521 formal written responses were submitted, of which 241 were from organisations and 280 from individual respondents. Of the 241 organisational responses, 81 were received from stakeholder groups relating to children/young people, equalities and human rights, disability and long term conditions and carers. The independent analysis of the responses along with the Scottish Government response were published on 22 February 20172.
2 https://www.gov.scot/publications/analysis-written-responses-consultation-social-security-scotland/ PAPER 8 SSC/S5/21/6/8
Further consultation took place in 2020 with organisations who will be directly affected by these Regulations, such as Scottish GPs (via the Scottish General Practitioners Committee of the British Medical Association) and Local Authorities (via the Society of Local Authority Lawyers and Administrators in Scotland), to inform the legislative requirements and gain their agreement on the necessity for information sharing. Engagement with these organisations is ongoing.
Consultation with the Information Commissioner’s Office (ICO) on these Regulations, in accordance with Article 36(4) of the General Data Protection Regulation (GDPR) took place on 17 December 2020. The ICO subsequently provided written advice on the Regulations, which has been considered and factored into the drafting of the Regulations and updating of the Social Security Scotland privacy notice.
Impact Assessments An Equalities Impact Assessment, Island Communities Impact Assessment, Data Protection Impact Assessment and the Child Rights and Wellbeing Impact Assessment (CRWIA), plus a Fairer Scotland Duty Assessment have been completed on the Social Security Information- sharing (Scotland) Regulations 2021.
There are no significant equalities or rights impacts that require further consideration in relation to the commencement of these regulations.
Financial Effects
A partial Business and Regulatory Impact Assessment (BRIA) has been completed and is attached. The Scottish Government is unaware of any evidence to suggest that Scottish businesses will be significantly impacted by the introduction of the Social Security Information-sharing (Scotland) Regulations 2021.
Scottish Government Social Security Directorate
February 2021 PAPER 9 SSC/S5/21/6/9
Social Security Committee
6th Meeting, 2021 (Session 5), Thursday 4 March 2021
Subordinate Legislation - Uprating
Overview of instrument 1. The Committee has been designated as lead for consideration of the following affirmative instruments:
The Social Security Up-rating (Scotland) Order 2021
The Social Security (Up-rating) (Miscellaneous Amendment) (Scotland Regulations
2. The Cabinet Secretary for Social Security and Older People will attend the meeting to move the motions to approve. The instruments and policy notes are attached.
Purpose of the Regulations 3. The purpose of these instruments is to uprate various benefits delivered by the Scottish and UK Governments. 4. The Social Security Up-rating (Scotland) Order 2021 deals with benefits currently administered by the Department for Work and Pensions (DWP). They are uprated in line with DWP policy which uses CPI inflation for carer and disability benefits (0.5%). The benefits uprated include:
• Attendance Allowance, • Carer’s Allowance, • Disability Living Allowance, • Industrial Injuries Disablement Benefit, • Industrial Death Benefit, • Personal Independence Payment and Severe Disablement Allowance.
5. The Social Security (Up-rating) (Miscellaneous Amendment) (Scotland) Regulations deal with benefits delivered by Social Security Scotland. This year the Scottish Government is uprating some benefits above inflation (0.5%) and will uprate the following by 1%:
• Young Carer Grant • Funeral Support Payment • Best Start Grant PAPER 9 SSC/S5/21/6/9
• Child Winter Heating Assistance
6. The regulations also correct a technical issue to ensure that child dependency increases, paid with a carer’s allowance, can include an increase for a qualifying young person. 7. The instrument and policy note provide more detail. Members will also wish to note that Carer’s Allowance Supplement is being uprated, but this does not require legislation. It will be uprated by 0.5% (September 2020 CPI). Delegated Powers and Law Reform Committee consideration 8. The DPLR Committee considered the Social Security (Up-rating) (Miscellaneous Amendment) (Scotland) Regulations at its meeting on 23 February and did not raise any issues. The DPLR Committee will consider the Social Security Up-rating (Scotland) Order 2021 at its meeting on 2 March. The Committee’s report will be circulated to Members before Thursday’s meeting.
For Decision 9. Is the Committee content to recommend approval of these instruments?
PAPER 10 SSC/S5/21/6/10 Cabinet Secretary for Social Security and Older People Shirley-Anne Somerville MSP T: 0300 244 4000 E: [email protected]
Dr Sally Witcher OBE Scottish Commission on Social Security c/o Secretariat Victoria Quay Edinburgh EH6 6QQ
___
10 February 2021
Dear Dr Witcher,
ANNUAL UPRATING OF SOCIAL SECURITY ASSISTANCE
Thank you for your letter of 8 February and the accompanying report under section 97 of the Social Security (Scotland) Act 2018, on the draft ‘The Social Security (Up-rating) (Miscellaneous Amendments) (Scotland) Regulations 2021’.
I have reviewed the recommendations and I have responded to each in turn in the annex to this letter at Annex A. I am pleased that no substantive changes to the draft regulations are required and that you welcome the extra increase to benefits that the Scottish Government has implemented, beyond the legislative requirements, to mitigate the impact of COVID-19 on low income households. I understand your concerns that this may impact the stated strategic approach to the uprating policy but trust that you would agree that the impact of COVID-19 has indeed been exceptional.
I note that you found the section 77 report helpful as an important source of information and evidence that could be drawn upon to inform scrutiny of the uprating regulations. My officials will consider the issues you raise regarding the report and will look to develop the content of future reports to assist understanding as more types of assistance are delivered.
I fully appreciate that the available scrutiny time has been impacted by the postponement of the UK Autumn Budget and the subsequent delay to the Scottish Budget. It was not anticipated that this would occur for a second year in a row and I am very grateful to you and your team for responding so promptly and thoroughly.
Scottish Ministers, special advisers and the Permanent Secretary are covered by the terms of the Lobbying (Scotland) Act 2016. See www.lobbying.scot St Andrew’s House, Regent Road, Edinburgh EH1 3DG www.gov.scot
PAPER 10 SSC/S5/21/6/10 Please accept my sincere thanks for your support under these circumstances for helping to ensure that the Regulations can be laid in the Scottish Parliament with sufficient time for them to come into effect for 1 April 2021.
Yours sincerely,
SHIRLEY-ANNE SOMERVILLE
Scottish Ministers, special advisers and the Permanent Secretary are covered by the terms of the Lobbying (Scotland) Act 2016. See www.lobbying.scot St Andrew’s House, Regent Road, Edinburgh EH1 3DG www.gov.scot
PAPER 10 SSC/S5/21/6/10
Annex A
SCoSS Recommendation SG Response 1. The Scottish Government is asked to clarify its strategic The Scottish Government’s uprating policy has been underpinned by a policy approach to uprating assistance, by explaining comprehensive evidence review, as published in 2019, and remains where, when, why and how flexibility in decision making is focussed on ensuring that payments keep pace with price inflation as desirable and could be used. reflected by the September CPI. The longer-term, strategic policy approach to uprating is to ensure it remains relevant and suitable for changes or improvements to inflation measures.
The decision to double the September CPI rate of 0.5% to support low income households was taken because of the exceptional circumstance of COVID-19. 2. The Scottish Government is asked to clarify its strategic The purpose of uprating is to protect the value of the benefit from eroding approach to uprating assistance, distinguishing between when prices are rising. That is why Scottish Ministers will consider the the maintenance of value and the increase of value. impact of price inflation on the benefits under s77 of the Act and, under s78 of the Act, uprate the carer’s, funeral support and disability benefits which they consider are materially below the inflation-adjusted level to at least that level. This approach maintains the purchasing power of the benefit.
An increase in value is increasing the generosity of a benefit and this would be a separate discussion and policy decision, outwith the scope of Section 77 report. The decision to double the 0.5% CPI rate for the low-income assistance was taken within the context of the impact of COVID-19 on low income families and as such should not be taken to represent a fundamental change of approach but rather a response to the current exceptional circumstances. 3. The Scottish Government is asked to clarify what might The COVID-19 pandemic alongside health and social impacts has brought constitute an ‘exceptional circumstance’ that would justify an unprecedented economic shock. Because economic shocks are benefits being increased beyond the September rate of unpredictable in nature, it would not be suitable to set out what might CPI. constitute an ‘exceptional circumstance’ in the future. The Scottish Government’s uprating policy is established and set out in the Policy and
Scottish Ministers, special advisers and the Permanent Secretary are covered by the terms of the Lobbying (Scotland) Act 2016. See www.lobbying.scot St Andrew’s House, Regent Road, Edinburgh EH1 3DG www.gov.scot
PAPER 10 SSC/S5/21/6/10
Analytical reports published in 2019. However, it is kept under review to ensure is suitable for unprecedented events like the COVID-19 pandemic or developments in the inflation measures area. 4. Unless circumstances outwith the control of the Scottish The annual uprating process is to ensure that carer’s, funeral support and Government preclude it, where there is a policy intent to disability benefits maintain their value as prices rise. Therefore, consultation uprate in a non-routine way, enough time should be is not necessary for this annual process as uprating by inflation does not factored in for stakeholder engagement. alter the policy underlying a particular form of assistance.
Stakeholder engagement and impact assessments will be conducted for each set of regulations providing for assistance under Chapter 2 of Part 2 and for assistance by way of top-up. Whenever possible, any future consideration of increasing the generosity of an existing benefit would involve stakeholder engagement and consultation including impact assessments. 5. To improve transparency, the Scottish Government is The section 77 report informs the Scottish Budget and was published the asked to consider whether section 77 reports or day after the budget announcement. The policy note that accompanies the information provided to accompany uprating Scottish Statutory Instruments sets out the financial impact of the policy and regulations could usefully say more on the economic references the Scottish Fiscal Commission Economic and Fiscal Forecasts impact on different groups and the overall costs of uprating January 2021 which sets out in detail the expenditure in Social Security. decisions. The policy note when laid will contain a footnote to the publication.
6. The Scottish Government should prepare equality see response to recommendation 4 above. impact assessments concerning the overall impact of uprating decisions on equality, where there is a policy intent to uprate in a non-routine way.
7. The Scottish Government should review whether other The Scottish Government will look to develop the content of future reports to information could usefully be provided in section 77 reports assist understanding as more types of assistance are delivered. in order to improve transparency.
Scottish Ministers, special advisers and the Permanent Secretary are covered by the terms of the Lobbying (Scotland) Act 2016. See www.lobbying.scot St Andrew’s House, Regent Road, Edinburgh EH1 3DG www.gov.scot
PAPER 10 SSC/S5/21/6/10
8. Acknowledging there may be good reasons that The statutory approach to uprating of Scottish Child Payment was agreed at preclude uprating SCP for 2021-22, the Scottish Stage 3 of the ‘Social Security Administration and Tribunal Membership Government is asked to clarify the basis for deciding not to (Scotland) Bill 2020’ on 29 September 2020. uprate it and any implications for its strategic approach in comparable situations. It was agreed that the duty to consider the effects of price inflation under section 77 of the 2018 Act would apply to all top-up assistance and that the duty to uprate under section 78 of the 2018 Act would apply to the Scottish Child Payment. As the first payments of the Scottish Child Payment would start from the end of February 2021, it makes sense that the duty to uprate annually would be made effective from April 2022 and would be brought into force by commencement regulations, likely to be in late 2021.
We have always been clear since its announcement that the SCP would be worth £10 per week per child when it launched in 2020/21 – that has not changed. The payment of £10 per week is already double what was originally asked for through the “Give me Five” campaign.
For any new assistance introduced under s79 of the Act, there is a clear duty under s77 to consider the effects of price inflation. The approach to uprating any new forms of assistance would be considered through stakeholder engagement.
Scottish Ministers, special advisers and the Permanent Secretary are covered by the terms of the Lobbying (Scotland) Act 2016. See www.lobbying.scot St Andrew’s House, Regent Road, Edinburgh EH1 3DG www.gov.scot
PAPER 11 SSC/S5/21/6/11
Draft Order laid before the Scottish Parliament under sections 150(2) and 150A(2A) of the Social Security Administration Act 1992 for approval by resolution of the Scottish Parliament.
DRAFT SCOTTISH STATUTORY INSTRUMENTS
2021 No.
SOCIAL SECURITY
The Social Security Up-rating (Scotland) Order 2021
Made - - - - 2021 Coming into force in accordance with regulation 1(2), (3) and (4)
The Scottish Ministers make the following Order in exercise of the powers conferred by sections 150(9), 150A(6), and 189(1) and (4) of the Social Security Administration Act 1992(a) and all other powers enabling them to do so.
As required by section 150(1)(a)(i)(b), 150(1)(b) and 150(1)(o)(c) of the Social Security Administration Act 1992, the Scottish Ministers have made a review and it appeared to the Scottish Ministers that the general level of prices was greater at the end of the period under review than it was at the beginning of the period.
As required by section 150A(1)(c)(d) of that Act, the Scottish Ministers have also made a review and it appeared to the Scottish Ministers that the general level of earnings was no greater at the end of the period under review than it was at the beginning of the period and the Scottish
(a) 1992 c.5. The function of making an order to up-rate or restate the rate of carers’, disability and industrial injuries benefits transferred to the Scottish Ministers by virtue of section 53 of the Scotland Act 1998 (c. 46) as read with sections 22(2) and 32 of the Scotland Act 2016 (c.11). Section 22(2) of that Act inserted exceptions into the social security reservation in Head F1 of Part 2 of Schedule 5 of the Scotland Act 1998 relating to carers’, disability and industrial injuries benefits. Section 22(2) was brought into force on 17th May 2017 by S.I. 2017/455, subject to transitional arrangements set out in S.I. 2017/444 which provided that pre-commencement functions would not transfer to the Scottish Ministers until the occurrence of a specified event or date. The transitional arrangements in respect of carers’ benefits were ended by the commencement of section 81 of the Social Security (Scotland) Act 2018 (asp 9) on 3rd September 2018 (see S.S.I. 2018/250). The transitional arrangements in respect of disability benefits and industrial injuries benefits ended on 31st March 2020 (see regulation 4 of S.I. 2017/444). Accordingly, in so far as the functions under sections 150 and 150A are exercisable within devolved competence for various benefits, they are now exercisable by the Scottish Ministers instead of by the Secretary of State. Section 189(1) of the Social Security Administration Act 1992 (c.5) was amended by paragraph 109(a) of schedule 7, and schedule 8, of the Social Security Act 1998 (c.14) (“the 1998 Act”), paragraph 57 of schedule 3 of the Social Security Contributions (Transfer of Functions, etc.) Act 1999 (c.2) and schedule 6 of the Tax Credits Act 2002 (c.21). Section 189(4) was amended by section 86, paragraph 109(c) of schedule 7, and schedule 8 of the 1998 Act and article 4 and Part 1 of the schedule of S.I. 2013/252. (b) A new section 150(1)(a)(i) was substituted by section 6(1) and (2)(a) of the Pensions Act 2007 (c.22). (c) Section 150(1)(o) was amended by paragraph 17 of schedule 9 of the Welfare Reform Act 2012 (c.5). (d) Section 150A was inserted by section 5(1) of the Pensions Act 2007 (c.22) and amended by paragraphs 8, 19 and 82 of Schedule 12 of the Pensions Act 2007 and S.I. 2014/2888. Section 150A of the Social Security Administration Act 1992 was modified by section 1 of the Social Security (Up-rating of Benefits) Act 2020 (c.23) to include, by inserting subsection (2A), the discretion to increase the amounts referred to in section 150A(1). Section 1 of that Act also inserted subsection (2B) into section 150A of the Social Security Administration Act 1992 which allows, where provision in respect of the amounts referred to in subsection (1)(c) is within the legislative competence of the Scottish Parliament, for references in that subsection to the Secretary of State to be treated as a reference to the Scottish Ministers, and the references to Parliament to be treated as references to the Scottish Parliament. PAPER 11 SSC/S5/21/6/11
Ministers consider it appropriate having regard to the national economic situation and other matters which the Scottish Ministers consider relevant to increase the amounts referred to in section 150A(1)(c) of that Act.
In accordance with sections 150(2) and 150A(2A)(a) of that Act a draft of this Order has been laid before and approved by resolution of the Scottish Parliament.
Citation, commencement and interpretation 1.—(1) This Order may be cited as the Social Security Up-rating (Scotland) Order 2021. (2) Subject to paragraphs (3) and (4), this Order comes into force on 1 April 2021. (3) Article 2 comes into force, in so far as it relates to a particular beneficiary, on the first day of the first benefit week to commence for that beneficiary on or after 1 April 2021. (4) Articles 3, 4, 5, 6(1)(b), 7, 8 and 9 come into force on 12 April 2021. (5) In this Order— “the 1992 Act” means the Social Security Contributions and Benefits Act 1992, and “benefit week” has the same meaning as in regulation 2(1) of the Social Security Benefit (Computation of Earnings) Regulations 1996(b).
Mandatory restatement of earnings limits 2. In section 80(4)(c) of the 1992 Act (earnings limits in respect of child dependency increases)— (a) “£245.00”, in both places where it occurs, remains unchanged, and (b) “£33.00” remains unchanged.
Rate of attendance allowance and date on which changes take effect 3.—(1) In the table in Part III of schedule 4 (non-contributory periodical benefits) of the 1992 Act— (a) in paragraph (a) in the third column of entry 1 (which specifies the higher weekly rate of attendance allowance)(d), for “£89.15” substitute “£89.60”, and (b) in paragraph (b) in the third column of entry 1 (which specifies the lower weekly rate of attendance allowance), for “£59.70” substitute “£60.00”. (2) The increases made by paragraph (1) take effect on 12 April 2021.
Rate of severe disablement allowance and age related addition and date on which changes take effect 4.—(1) In the table in Part III of schedule 4 (non-contributory periodical benefits) of the 1992 Act— (a) in the third column of entry 2(e) (which specifies the weekly rate of severe disablement allowance), for “£80.85” substitute “£81.25”, and
(a) Section 150A(2A) was inserted by section 1(a) of the Social Security (Up-rating of Benefits) Act 2020 (c.23). Section 1(a) of that Act also inserted section 150A(2B) of the Social Security Administration Act 1992 which allows, where provision in respect of the amounts referred to in subsection (1)(c) is within the legislative competence of the Scottish Parliament, for references in section 150A(2A) to the Secretary of State to be treated as a reference to the Scottish Ministers, and the references to Parliament to be treated as references to the Scottish Parliament. (b) S.I. 1996/2745. Regulation 2(1) is relevantly amended by S.I. 2016/267 and S.I. 1999/3178. (c) Section 80 was repealed by paragraph 6 of schedule 6 of the Tax Credits Act 2002 (c.21). Article 3 of S.I. 2003/938 saves the repealed provision in certain circumstances. Relevant amending instrument is S.I. 2020/234. (d) Entry 1 is relevantly amended by S.I. 2020/234. (e) Entry 2 is relevantly amended by S.I. 2020/234.
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(b) in the third column of entry 3(a)— (i) in paragraph (a) (which specifies the higher weekly rate of the age related addition), for “£12.10” substitute “£12.15”, (ii) in paragraph (b) (which specifies the middle weekly rate of the age related addition), for “£6.70” substitute “£6.75”, and (iii) in paragraph (c) (which specifies the lower weekly rate of the age related addition), for “£6.70” substitute “£6.75”. (2) The increases made by paragraph (1) take effect on 15 April 2021.
Mandatory restatement and increase of rates of carer’s allowance and date on which changes take effect 5.—(1) In schedule 4 (rates of benefits) of the 1992 Act— (a) in the third column of entry 4 of the table in Part III (which specifies the weekly rate of carer’s allowance)(b), for “£67.25” substitute “£67.60”, and (b) in the second column of entry 9 of the table in Part IV (which specifies the weekly rate of increase for qualifying child)(c), “£11.35” remains unchanged. (2) The increases made by paragraph (1) take effect on 12 April 2021, subject to paragraph (3). (3) Where arrangements have been made by or on behalf of the Scottish Ministers for carer’s allowance to be paid on a Wednesday, the increase takes effect on 14 April 2021.
Mandatory restatement and increase of rates for dependants payable with severe disablement allowance and date on which change takes effect 6.—(1) In entry 8 of the table in Part IV of schedule 4 (increases for dependants)(d) of the 1992 Act— (a) in the second column (which specifies the increase for qualifying child for severe disablement allowance), “£11.35” remains unchanged, and (b) in the third column (which specifies the increase for adult dependant for severe disablement allowance), for “£39.75” substitute “£39.95”. (2) The increase made by paragraph (1)(b) takes effect on 15 April 2021.
Rate of industrial injuries disablement benefit and industrial death benefit and date on which changes take effect 7.—(1) The sums specified in Part V of schedule 4(e) (rates of industrial injuries benefit) of the 1992 Act are increased so that Part V has effect as set out in the schedule of this Order. (2) The increases made by paragraph (1) take effect on 12 April 2021 except those set out in— (a) entry 1 in the table set out in the schedule (the weekly rates of disablement pension), (b) entry 4 in the table set out in the schedule (the maximum of the aggregate of weekly benefit payable for successive accidents under section 107(1) of the 1992 Act), (c) entries 7, 8 and 12 in the table set out in the schedule (increases in disablement pension and industrial death benefit in respect of dependants), (d) entry 9 in the table set out in the schedule (the maximum disablement gratuity under paragraph 9(2) of schedule 7 of the 1992 Act), and
(a) Entry 3 is relevantly amended by S.I. 2020/234. (b) Entry 4 is amended by S.I. 2014/516, S.I. 2020/298 and S.S.I. 2020/116. (c) Entry 9 is amended by S.S.I. 2019/102. (d) Entry 8 is relevantly amended by S.I. 2019/480. (e) Part V of schedule 4 is relevantly amended by section 65(2) and (3) and of the Welfare Reform Act 2012 (c.5), paragraph 15(3) of schedule 1 of the Child Benefit Act 2005 (c.6), S.I. 2012/780, S.I. 2014/516, S.I. 2018/281 and S.I. 2019/480.
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(e) entries 10 and 11 in the table set out in the schedule (industrial death benefit by way of widow’s and widower’s pension), which take effect on 14 April 2021.
Rate of disability living allowance 8. In regulation 4 (rate of benefit) of the Social Security (Disability Living Allowance) Regulations 1991(a)— (a) in paragraph (1)(a), for “£89.15” substitute “£89.60”, (b) in paragraph (1)(b), for “£59.70” substitute “£60.00”, (c) in paragraph (1)(c), for “£23.60” substitute “£23.70”, (d) in paragraph (2)(a), for “£62.25” substitute “£62.55”, and (e) in paragraph (2)(b), for “£23.60” substitute “£23.70”.
Rate of personal independence payment 9. In regulation 24 of the Social Security (Personal Independence Payment) Regulations 2013(b) (rate of personal independence payment)— (a) in paragraph (1)(a), for “£59.70” substitute “£60.00”, (b) in paragraph (1)(b), for “£89.15” substitute “£89.60”, (c) in paragraph (2)(a), for “£23.60” substitute “£23.70”, and (d) in paragraph (2)(b), for “£62.25” substitute “£62.55”.
Name A member of the Scottish Government St Andrew’s House, Edinburgh Date
(a) S.I. 1991/2890. Regulation 4 is relevantly amended by S.I. 1993/1939 and S.I. 2020/234. (b) S.I. 2013/377. Regulation 24 is relevantly amended by S.I. 2020/234.
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SCHEDULE Article 7 INCREASES TO PART V OF SCHEDULE 4 OF THE 1992 ACT
Table 1 Description of benefit, etc. Rate 1. Disablement pension (weekly rates). For the several degrees of disablement set out in column (1) of the following Table, the respective amounts in column (2) of that Table. Degree of disablement Amount (1) (2) Percent £ 100 182.90 90 164.61 80 146.32 70 128.03 60 109.74 50 91.45 40 73.16 30 54.87 20 36.58 2. Maximum increase of weekly rate of (a) except in cases of £73.20 disablement pension where constant attendance exceptionally severe needed. disablement (b) in any case £146.40 3. Increase of weekly rate of disablement £73.20 pension (exceptionally severe disablement). 4. Maximum of aggregate of weekly benefit £182.90 payable for successive accidents. 5. Unemployability supplement under £113.10 paragraph 2 of Schedule 7. 6. Increase under paragraph 3 of Schedule 7 of (a) if on the qualifying £23.40 weekly rate of unemployability supplement. date the beneficiary was under the age of 35 or if that date fell before 5th July 1948 (b) if head (a) above £23.40 does not apply and on the qualifying date the beneficiary was under the age of 40 and had not attained pensionable age before 6th April 1979 (c) if heads (a) and (b) £15.00 above do not apply and on the qualifying date the beneficiary was under the age of 45 (d) if heads (a), (b) and £15.00
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(c) above do not apply and on the qualifying date the beneficiary was under the age of 50 and had not attained pensionable age before 6th April 1979 (d) in any other case £7.50 7. Increase under paragraph 4 of Schedule 7 of £11.35 weekly rate of disablement pension. 8. Increase under paragraph 6 of Schedule 7 of £67.60 weekly rate of disablement pension. 9. Maximum disablement gratuity under £12,140.00 paragraph 9 of Schedule 7. 10. Widow’s pension (weekly rates). (b) higher permanent rate £137.60 (c) lower permanent rate 30 per cent of the first sum specified in section 44(4) (Category A basic retirement pension) (the appropriate rate being determined in accordance with paragraph 16 of schedule 7) 11. Widower’s pension (weekly rate). £137.60 12. Weekly rate of allowance in respect of In respect of each child or £11.35 children and qualifying young persons under qualifying young person paragraph 18 of schedule 7.
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EXPLANATORY NOTE (This note is not part of the Order) This Order provides for an increase in the various rates of carer’s allowance, attendance allowance, disability living allowance, industrial injuries disablement benefit, industrial death benefit, severe disablement allowance, and personal independence payment. The Order comes into force on 1 April 2021. Article 2 comes into force on the first day of the first benefit week to commence for a particular beneficiary on or after 1 April 2021. Articles 3, 4, 5, 6(1)(b), 7, 8 and 9 come into force on 12 April 2021. Articles 3, 4, 5, 6 and 7 set out the dates on which the increases take effect. Articles 2, 5 and 6 provide for a mandatory re-statement of amounts of payments which are not to be increased. These give effect to the requirement in section 150(2)(c) of the Social Security Administration Act 1992 to re-state amounts of payments that are not being increased. Article 2 provides solely for the mandatory restatement of the earnings limits which relate to child dependency increase. This is an additional payment payable to a recipient of carer’s allowance who is entitled to receive child benefit in relation to a child or children. It is payable only to those with transitional protection. Child dependency increase was abolished by section 1(3)(e) and schedule 6 of the Tax Credits Act 2002 but saved for transitional cases by article 3 of the Tax Credits Act 2002 (Commencement No. 3 and Transitional Provisions and Savings) Order 2003. Given that child benefit is payable, in certain circumstances, until a child reaches the age of 20, child dependency increase is potentially payable until 2023. Article 3 amends part III of schedule 4 of the Social Security Contributions and Benefits Act 1992 (the 1992 Act) to provide increases in both the higher and lower weekly rates of attendance allowance. Article 4 amends Part III of schedule 4 of the 1992 Act to provide increases in the weekly rate of severe disablement allowance and all three weekly rates of the age related addition of that allowance. Article 5 amends Part III and Part IV of schedule 4 of the 1992 Act to provide for the increase in the weekly rate of carer’s allowance. It also restates the weekly rate of carer’s allowance increase for a qualifying child. Article 6 amends Part IV of schedule 4 of the 1992 Act to increase the rates for adult dependants payable with severe disablement allowance. It also restates the rate of increase for a qualifying child. Article 7 amends Part V of schedule 4 of the 1992 Act to increase various weekly rates of industrial injuries benefit and industrial death benefit, as set out in the table below. Article 8 amends regulation 4 of the Social Security (Disability Living Allowance) Regulations 1991 to increase the five weekly rates, as divided across both the care and mobility components, of disability living allowance. Article 9 amends regulation 24 of the Social Security (Personal Independence Payment) Regulations 2013 to increase the four weekly rates, as divided across both the daily living and mobility components, of personal independence payment.
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No business and regulatory impact assessment has been prepared for this Order as no impact upon business, charities or voluntary bodies is foreseen.
Description of benefit, etc. Rate 1. Disablement pension (weekly rates). For the several degrees of disablement set out in column (1) of the following Table, the respective amounts in column (2) of that Table. Degree of disablement Amount (1) (2) Percent £ 100 Increases from £182 to £182.90 90 Increases from £163.80 to £164.61 80 Increases from £145.60 to £146.32 70 Increases from £127.40 to £128.03 60 Increases from £109.20 to £109.74 50 Increases from £91 to £91.45 40 Increases from £72.80 to £73.16 30 Increases from £54.60 to £54.87 20 Increases from £36.40 to £36.58 2. Maximum increase of weekly rate of (a) except in cases of increases from disablement pension where constant attendance exceptionally severe £72.80 to £73.20 needed. disablement (b) in any case increases from £145.60 to £146.40 3. Increase of weekly rate of disablement Increases from pension (exceptionally severe disablement). £72.80 to £73.20 4. Maximum of aggregate of weekly benefit Increases from payable for successive accidents. £182 to £182.90 5. Unemployability supplement under Increases from paragraph 2 of Schedule 7 £112.55 to £113.10 6. Increase under paragraph 3 of Schedule 7 of (a) if on the qualifying increases from weekly rate of unemployability supplement. date the beneficiary £23.30 to £23.40 was under the age of 35 or if that date fell before 5th July 1948 (b) if head (a) above increases from does not apply and £23.30 to £23.40 on the qualifying date the beneficiary was under the age of
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40 and had not attained pensionable age before 6th April 1979 (c) if heads (a) and (b) increases from above do not apply £14.90 to £15.00 and on the qualifying date the beneficiary was under the age of 45 (d) if heads (a), (b) and increases from (c) above do not £14.90 to £15.00 apply and on the qualifying date the beneficiary was under the age of 50 and had not attained pensionable age before 6th April 1979 (e) in any other case increases from £7.45 to £7.50 7. Increase under paragraph 4 of Schedule 7 of £11.35 remains weekly rate of disablement pension. the same 8. Increase under paragraph 6 of Schedule 7 of Increases from weekly rate of disablement pension. £67.25 to £67.60 9. Maximum disablement gratuity under Increases from paragraph 9 of Schedule 7. £12,080 to £12,140 10. Widow’s pension (weekly rates). (b) higher permanent increases from rate £134.25 to £137.60
(c) lower permanent rate 30 per cent of the first sum specified in section 44(4) (Category A basic retirement pension) (the appropriate rate being determined in accordance with paragraph 16 of schedule 7) 11. Widower’s pension (weekly rate). Increases from £134.25 to £137.60 12. Weekly rate of allowance in respect of In respect of each child or qualifying young children and qualifying young persons under person £11.35 remains the same. paragraph 18 of schedule 7.
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POLICY NOTE
THE SOCIAL SECURITY UP-RATING (SCOTLAND) ORDER 2021
SSI 2021/XXX
The above instrument will be made in exercise of the powers conferred by sections 150(9) and 150A(6) of the Social Security Administration Act 1992 (‘the 1992 Act’). The instrument is subject to the affirmative procedure. For the purposes of this note, the instrument will be referred to as ‘the 2021 Order’.
Purpose of the instrument. This Order fulfils the statutory duty on the Scottish Ministers to review the rates of social security benefits that they are responsible for and provides for the uprating of certain benefits. Various weekly rates of payment of Attendance Allowance, Carer’s Allowance, Disability Living Allowance, Industrial Injuries Disablement Benefit, Industrial Death Benefit, Personal Independence Payment and Severe Disablement Allowance will increase. The Order also restates the amount of Child Dependency Increase as an additional weekly payment payable to some recipients of Carer’s Allowance and Severe Disablement Allowance and an increase to the Adult Dependency Increase as an additional weekly payment payable to some recipients of Severe Disablement Allowance. Other associated benefits of the Severe Disablement Allowance and Industrial Injuries Scheme benefits will also increase.
Policy Objectives The purpose of the 2021 Order is to uprate the weekly rates of payment of Attendance Allowance, Carer’s Allowance, Disability Living Allowance, Industrial Injuries Disablement Benefit, Industrial Death Benefit, Personal Independence Payment and the Severe Disablement Allowance. The functions of the Secretary of State for Work and Pensions in relation to Carer’s Allowance payable to people resident in Scotland transferred to the Scottish Ministers, with effect from 3 September 2018 and for all the other remaining devolved benefits from 1 April 2020. The result is that the Scottish Ministers are responsible for the provision of these benefits to people who usually live in Scotland. Agency agreements have been entered with the Secretary of State for Work and Pensions, exercising powers arising from the Scotland Act 1998 (Agency Arrangements) (Specification) Order 2018. This has the effect that the Secretary of State delivers these benefits on behalf of the Scottish Ministers. In terms of that agreement, the Scottish Ministers are committed to uprate these benefits at the same rate as the Department for Work and Pensions (DWP). It is, though, a matter for the Scottish Ministers to make an order effecting the uprating. Given the transfer of functions, it is policy for Scottish Ministers to make legislation relating to these benefits, insofar as they relate to Scotland. Benefits linked to the general level of prices Section 150(1) of the 1992 Act requires a review of Attendance Allowance, Carer’s Allowance, Disability Living Allowance, Industrial Injuries Disablement Benefit, Personal PAPER 11 SSC/S5/21/6/11
Independence Payment and the Severe Disablement Allowance and to uprate them where there has been in increase in the general level of prices. It has been determined that there has been an increase in the general level of prices in the past year. Accordingly, this Order is brought forward in reliance on section 150(2)(a), to increase the relevant sums so far as they fall within the competence of the Scottish Ministers. In line with the approach of the DWP, the uprate to be applied is according to the September 2020 Consumer Price Index (CPI) as published on 21 October 2020, in this case 0.5%. This is the 12-month inflation rate, which compares prices for September 2020 with the same month a year ago. Other Miscellaneous Benefits The Order restates the Child Dependency Increase which is an additional weekly payment payable to a recipient of Carer’s Allowance or Severe Disablement Allowance who is entitled to receive Child Benefit. There is also an increase to the Adult Dependency Increase as an additional weekly payment payable to some recipients of Severe Disablement Allowance. The benefits associated with the Industrial Injuries Scheme such as Exceptionally Severe Disablement Allowance, Reduced Earnings Allowance and Retirement Allowance are also increased. The complete associated benefits are set out in the Order. Benefits linked to earnings Section 150A(1)(c) of the 1992 Act requires a review of the Industrial Death Benefit widow’s and widower’s pension as these are linked to earnings. As a consequence of Covid-19, the growth in earnings was negative this year. The Social Security (Up-rating of Benefits) Act 20201 was enacted on 23 November 2020 to allow pensions to be uprated through the triple lock guarantee even when earnings where negative. The triple lock guarantee ensures that pensions increase by the greatest of average earnings, prices as measured by CPI or 2.5%. As 2.5% is the highest measure this year the Industrial Death Benefit widow’s pension and widower’s pension will be increased by this rate. The uprates will match the rate that the UK Government will apply to all these benefits in England and Wales. The increase to these benefits will take effect as set out in the 2021 Order. The uprate will ensure that the benefits will keep pace with price inflation. The Cabinet Secretary for Finance announced the proposed rates of the benefits for 2021/22 to the Scottish Parliament during the Scottish Budget on 28 January 2021. In accordance with the 1992 Act, a draft of this Order is laid before the Scottish Parliament for approval by resolution. Consultation There is no statutory requirement to consult on this instrument. However, a comprehensive report2, including analytical evidence, on the measures that could be used to uprate devolved social security assistance was provided to the Social Security Committee and the Scottish Commission on Social Security (SCoSS) to allow them to engage on the proposed uprating policy. The analytical report was prepared to provide a detailed review of relevant inflation measures to inform the options available to uprate devolved social security assistance. The Policy Paper set out the Scottish Government’s proposed approach to uprating and recommended the use of the September CPI with the payment rounded to the nearest multiple
1 Social Security (Up-rating of Benefits) Act 2020 (legislation.gov.uk) 2https://www.parliament.scot/S5_Social_Security/General%20Documents/20190902_CabSecSSOP_to_Convener_uprating_m easures.pdf PAPER 11 SSC/S5/21/6/11 of 5 pence. The paper also noted that, during any period when a benefit is delivered by DWP on behalf of Scottish Ministers under an agency agreement, Scottish Ministers will be obliged to uprate on the same basis as DWP. SCoSS were supportive of the Scottish Government’s uprating policy in the short term and the Social Security Committee noted the Scottish Government’s position and had no further views to report beyond the discussion at the Committee on 10 October 20193. Impact Assessments The full range of impact assessments were considered and completed where necessary for the Social Security (Scotland) Bill (which included provision for the Carer’s Allowance Supplement) and will take place for each of the devolved benefits e.g. impact assessments have been published, for Best Start Grant4, Funeral Expense Assistance5, Young Carer Grant6 and Child Winter Heating Assistance7. Impact assessments for any new Scottish benefits will be undertaken at the point where policy is being developed and regulations are being drafted. As the uprating of these benefits ensures that the benefits people receive keep pace with inflation, and maintain the current situation, then it is considered that there is no significant impact on the private, voluntary or public sector. Financial Effects A Financial Memorandum8 was completed prior to introduction of the Social Security (Scotland) Bill. The Financial Memorandum considers the costs of uprating and recognises that the methodology of uprating of benefits for inflation is a source of financial risk as any future policy differentials between Scotland and the UK for uprating could result in additional pressures on the Scottish Budget. However, as this uprate to the devolved benefits for recipients in Scotland is the same as to recipients in England and Wales this means there will be no impact on the Scottish Budget. The block grant adjustment methodology detailed in the “Agreement between the Scottish Government and the UK Government on the Scottish Government’s fiscal framework” published on 23 February 2016, continues to link adjustments to the Scottish block grant in respect of welfare to spending on equivalent policy areas in England and Wales. This means the Scottish Government is funded to provide the same level of benefits as in England and Wales.
Scottish Government Social Security Directorate 10 February 2021
3 http://www.parliament.scot/parliamentarybusiness/report.aspx?r=12322&mode=pdf 4 https://beta.gov.scot/publications/early-years-assistance-consultation-best-start-grant-regulations/pages/9/ 5 https://www.gov.scot/publications/consultation-funeral-expense-assistance-regulations/pages/8/ 6 https://www.gov.scot/publications/consultation-young-carer-grant-regulations/pages/8/ 7 The Winter Heating Assistance for Children and Young People (Scotland) Regulations 2020 (legislation.gov.uk) 8 http://www.parliament.scot/S5_Bills/Social%20Security%20(Scotland)%20Bill/SPBill18FMS052017.pdf PAPER 11 SSC/S5/21/6/11
Draft Regulations laid before the Scottish Parliament under section 96(2) of the Social Security (Scotland) Act 2018 for approval by resolution of the Scottish Parliament.
DRAFT SCOTTISH STATUTORY INSTRUMENTS
2021 No.
SOCIAL SECURITY
The Social Security (Up-rating) (Miscellaneous Amendment) (Scotland) Regulations 2021
Made - - - - 2021 Coming into force - - 1st April 2021
The Scottish Ministers make the following Regulations in exercise of the powers conferred by sections 28(2), 30(2), 32(2), 34(2) and 95 of the Social Security (Scotland) Act 2018(a) and sections 70(8) and 90 of the Social Security Contributions and Benefits Act 1992(b) and all other powers enabling them to do so.
In accordance with section 96(2) of the Social Security (Scotland) 2018 Act, a draft of this instrument has been laid before and approved by resolution of the Scottish Parliament.
In accordance with section 97(2) of the Social Security (Scotland) Act 2018, the Scottish Ministers have informed the Scottish Commission on Social Security of their proposals, notified the Scottish Parliament that they have done so and made their proposals publicly available by such means as the Ministers consider appropriate.
Citation, commencement and interpretation 1.—(1) These Regulations may be cited as the Social Security (Up-rating) (Miscellaneous Amendment) (Scotland) Regulations 2021 and come into force on 1 April 2021.
(a) 2018 asp 9. The powers to make these Regulations are exercised together by virtue of section 33(2) of the Interpretation and Legislative Reform (Scotland) Act 2010 (asp 10). The Regulations are subject to the affirmative procedure by virtue of section 33(3) of that Act. (b) 1992 c.4. The function of making regulations to amend the operation of the child dependency increase of carer’s allowance was transferred to the Scottish Ministers by virtue of section 53 of the Scotland Act 1998 (c.46) as read with sections 22(2) and 32 of the Scotland Act 2016 (c.11). Section 22(2) of that Act inserted, amongst other things, exception 2 into the social security reservation of Head F1 of Part 2 of Schedule 5 of the Scotland Act 1998. Section 22(2) was brought into force on 17th May 2017 by S.I. 2017/455, subject to transitional arrangements set out in S.I. 2017/444, which provided that pre- commencement functions would not transfer to the Scottish Ministers until the occurrence of a specified event or date. The transitional arrangements in respect of carers’ benefits were ended by the commencement of section 81 of the Social Security (Scotland) Act 2018 (asp 9) on 3rd September 2018 (see S.S.I. 2018/250). Accordingly, responsibility for the exercise of the functions exercisable by the Secretary of State in relation to carer’s allowance as provided for in sections 70(8) and 90 of the Social Security Contributions and Benefits Act 1992 (c.4) has transferred to the Scottish Ministers as regards provision of those benefits to people residing in Scotland. Section 90 of that Act was amended by paragraph 26 of schedule 8 of the Welfare Reform and Pensions Act 1999 (c.30) and by article 2 of, and paragraphs 1 and 2 of the schedule of, S.I. 2002/1457. Section 90 was repealed by schedule 6 to the Tax Credits Act 2002 (c.21) in respect of child dependency increases, subject to savings by article 3 of S.I. 2003/938. Section 90 was repealed for remaining purposes by sections 15(1)(b) and 58(2)(a) of, and Part 2 of schedule 7 to, the Welfare Reform Act 2009 (c.24), subject to a saving by section 15(2)(b) of that Act. PAPER 11 SSC/S5/21/6/11
(2) In these Regulations— “the Best Start Grant Regulations” means the Early Years Assistance (Best Start Grants) (Scotland) Regulations 2018(a), “the Child Winter Heating Assistance Regulations” means the Winter Heating Assistance for Children and Young People (Scotland) Regulations 2020(b), “the Funeral Expense Assistance Regulations” means the Funeral Expense Assistance (Scotland) Regulations 2019(c), “the Dependency Regulations” means the Social Security Benefit (Dependency) Regulations 1977(d), and “the Young Carer Grants Regulations” means the Carer’s Assistance (Young Carer Grants) (Scotland) Regulations 2019(e).
Amendment of the Best Start Grant Regulations 2.—(1) The Best Start Grant Regulations are amended as follows. (2) In schedule 2— (a) in paragraph 6(1) (value of pregnancy and baby payment grant)— (i) in head (a), for “£600” substitute “£606”, and (ii) in head (b), for “£300” substitute “£303”, and (b) in paragraph 7(1) (value of multiple pregnancy supplement), for “£300” substitute “£303”. (3) In paragraph 4 of schedule 3(f) (value of early learning grant), for “£250” substitute “£252.50”. (4) In paragraph 5 of schedule 4(g) (value of school-age grant), for “£250” substitute “£252.50”.
Amendment of the Young Carer Grants Regulations 3.—(1) The Young Carer Grants Regulations are amended as follows. (2) In regulation 4(7)(b)(h) (making of applications), for “21 October 2019” substitute “22 July 2019”. (3) In regulation 12(1)(i) (amount and form of young carer grants), for “£305.10” substitute “£308.15”.
Amendment of the Funeral Expense Assistance Regulations 4.—(1) The Funeral Expense Assistance Regulations are amended as follows. (2) In regulation 9 (residence conditions, place of funeral and status), omit paragraph (4). (3) In regulation 13(j) (amount of funeral expense assistance)— (a) in paragraph (1)(b), for “£1000” substitute “£1010”, (b) in paragraph (4)(b), for “£20.35” substitute “£20.55”, and (c) in paragraph (6), for “£122.05” substitute “£123.25”.
(a) S.S.I. 2018/370. (b) S.S.I. 2020/352. (c) S.S.I. 2019/292. (d) S.I. 1977/343. (e) S.S.I. 2019/324. (f) As relevantly amended by S.S.I. 2019/157. (g) As relevantly amended by S.S.I. 2019/157. (h) Regulation 4(7) was inserted by S.S.I. 2020/475. (i) As relevantly amended by S.S.I. 2020/99 and S.S.I. 2020/475. (j) As relevantly amended by S.S.I. 2020/99.
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Amendment of the Child Winter Heating Assistance Regulations 5.—(1) The Child Winter Heating Assistance Regulations are amended as follows. (2) In regulation 4(1)(c)(ii) (eligibility rules for child winter heating assistance), after “habitually resident in” insert “Switzerland or”. (3) In regulation 10(1) (value of child winter heating assistance), for “£200” substitute “£202”. (4) In the schedule, omit “Swiss Confederation”.
Amendment of the Dependency Regulations 6. In schedule 2(a) (increase of carer’s allowance for child dependants) of the Dependency Regulations— (a) in paragraph 2— (i) after “child or children” insert “or a qualifying young person or persons”, (ii) after “that child” insert “or qualifying young person”, and (iii) after “those children” insert “or qualifying young persons”, (b) in paragraph 2B(b), after “child”, in both places where it occurs, insert “or qualifying young person”, (c) in paragraph 3— (i) in sub-paragraph (a), before “living” insert “or qualifying young person”, and (ii) in sub-paragraph (b), after “child” insert “or qualifying young person”, and (d) in paragraph 5, after “children”, in each place where it occurs, insert “or qualifying young persons”.
Saving Provisions 7. The Schedule has effect.
Name A member of the Scottish Government St Andrew’s House, Edinburgh Date
(a) Relevant amending instruments are S.I. 1984/1699, S.I. 2002/2497 and S.S.I. 2020/32. (b) Paragraph 2B was added by S.I. 1984/1699.
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SCHEDULE Regulation 7 Saving Provisions
Best Start Grant Regulations 1.—(1) Where sub-paragraph (2) applies to an individual— (a) paragraph 6(1)(a) and (b) of schedule 2, (b) paragraph 7(1) of schedule 2, (c) paragraph 4 of schedule 3(a), and (d) paragraph 5 of schedule 4(b), of the Best Start Grant Regulations(c) continue to have effect on and after 1 April 2021 in relation to the amount of assistance to be given to that individual as they did immediately before that date. (2) This sub-paragraph applies where the individual’s application for assistance under the Best Start Grant Regulations was made before 1 April 2021. (3) In this paragraph, reference to the individual’s application being made is to be construed in accordance with regulation 4(d) (when an application is treated as made) of the Best Start Grant Regulations.
Young Carer Grants Regulations 2.—(1) Where sub-paragraph (2) applies to an individual, regulation 12(1) of the Young Carer Grants Regulations(e) continues to have effect on and after 1 April 2021 in relation to the amount of assistance to be given to that individual as it did immediately before that date. (2) This sub-paragraph applies where the individual’s application for assistance under the Young Carer Grants Regulations was made before 1 April 2021. (3) In this paragraph, reference to the individual’s application being made is to be construed in accordance with regulation 4(f) (making of applications) of the Young Carer Grants Regulations.
Funeral Expense Assistance Regulations 3.—(1) Where sub-paragraph (2) applies to an individual, regulation 13(1)(b), (4)(b) and (6) of the Funeral Expense Assistance Regulations(g) continue to have effect on and after 1 April 2021 in relation to the amount of assistance to be given to that individual as they did immediately before that date. (2) This sub-paragraph applies where the individual’s application for assistance under the Funeral Expense Assistance Regulations was made before 1 April 2021. (3) In this paragraph, reference to the individual’s application being made is to be construed in accordance with regulation 3(6) (applications) of the Funeral Expense Assistance Regulations.
(a) As relevantly amended by S.S.I. 2019/157. (b) As relevantly amended by S.S.I. 2019/157. (c) S.S.I. 2018/370. (d) As relevantly amended by S.S.I. 2019/110. (e) S.S.I. 2019/324, as relevantly amended by S.S.I. 2020/99 and S.S.I. 2020/475. (f) As relevantly amended by S.S.I. 2020/475. (g) S.S.I. 2019/292, as relevantly amended by S.S.I. 2020/99.
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EXPLANATORY NOTE (This note is not part of the Regulations) These Regulations provide for an increase in various values of forms of assistance payable by virtue of regulations made under the Social Security (Scotland) Act 2018 and make other minor amendments. The Regulations come into force on 1 April 2021. Regulation 2 increases the value of the three grants payable under the Early Years Assistance (Best Start Grants) (Scotland) Regulations 2018 (the pregnancy and baby grant, the early learning grant, and the school age grant). Paragraph 1 of the schedule makes saving provision so that the previous values of these grants are still operative in certain circumstances. Regulation 3 makes an amendment remedying a date within the Carer’s Assistance (Young Carer Grants) (Scotland) Regulations 2019 and also provides an increase in the value of the grant. Paragraph 2 of the schedule makes saving provision so that the previous value of this grant is still operative in certain circumstances. Regulation 4 makes an amendment to the Funeral Expense Assistance (Scotland) Regulations 2019 removing a reference to a Directive 2004/38/EC which, prior to this amendment, was to be construed as forming part of domestic law. Regulation 4 also increases the value of various amounts within funeral expense assistance. Paragraph 3 of the schedule makes saving provision so that previous values of this assistance are still operative in certain circumstances. Regulation 5 makes an amendment remedying a defect within the Winter Heating Assistance for Children and Young People (Scotland) Regulations 2020 by inserting a reference to Switzerland into a provision regarding habitual residence and removing a reference to the Swiss Confederation in another provision. It also increases the value of child winter heating assistance. Regulation 6 makes an amendment remedying a defect within a provision of the Social Security Benefit (Dependency) Regulations 1977 relating to increases of carer’s allowance for child dependants by adding references to “qualifying young person” and “qualifying young persons” to the terms of schedule 2 of those Regulations. This puts beyond doubt that child dependency increases paid with a carer’s allowance can include an increase for a qualifying young person. Regulation 7 and the schedule make saving provision.
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POLICY NOTE
THE SOCIAL SECURITY (UP-RATING) (MISCELLANEOUS AMENDMENT) (SCOTLAND) REGULATIONS 2021
SSI 2021/XXX
The above instrument will be made in exercise of the powers conferred by section 28(2), 30(2), 32(2), 34(2) and 95 of the Social Security (Scotland) Act 2018 (‘the 2018 Act’) and sections 70(8) and 90 of the Social Security Contributions and Benefits Act 1992. The instrument is subject to the affirmative procedure. For the purposes of this note, the instrument will be referred to as the ‘2021 Regulations’.
Purpose of the instrument The 2021 Regulations fulfil the duty on the Scottish Ministers under section 77 of the Social Security (Scotland) Act 2018 (“the Act”) to consider the effects of inflation on the assistance that are in effect and under section 78(1) to bring forward legislation to increase the amount of Funeral Support Payment and Young Carer Grant to an amount which is at least as high as if the existing amount was adjusted in line with price inflation.
After considering the effects of inflation the Scottish Ministers have decided to increase all the Chapter 2 assistance in effect by 1% which is 0.5% higher than the inflation-adjusted level of assistance. The 2021 Regulations increase the amount of; • the Young Carer Grant payable under the Carer’s Assistance (Young Carer Grants) (Scotland) Regulations 2019; • the amounts payable under the Funeral Expense Assistance (Scotland) Regulations 2019; namely, 1) the standard amount of assistance that is available towards other funeral costs, 2) the amount which is payable towards other funeral costs if the deceased has a pre-paid funeral plan and 3) the amount which is payable towards a fee for removing an active implantable medical device from the deceased; • the amounts payable under the the Early Years Assistance (Best Start Grants)(Scotland) Regulations 2018; namely, 1) The Pregnancy and Baby Payment, 2) The Early Learning Payment and 3) The School Age Payment; and • the Child Winter Heating Assistance payable under the Winter Heating Assistance for Children and Young People (Scotland) Regulations 2020. The increase comes into effect on 1 April 2021.
The opportunity has also been taken through these regulations to make some minor technical amendments to correct existing regulations.
Policy Objectives Section 77 of the 2018 Act requires Scottish Ministers to calculate the inflation-adjusted level of each amount of assistance prescribed in regulations under any section in Chapter 2 and report to the Scottish Parliament, before the end of each financial year, on what they have done or intend to do as a result of the changes to prices. Section 78 of the 2018 Act requires Scottish Ministers to bring forward legislation before the end of each financial year to replace the amounts of Funeral Support Payment and Young Carer Grant with amounts which are at
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least as high as the inflation-adjusted level of each amount. Scottish Ministers also decide whether to apply this uprate to Best Start Grant and Child Winter Heating Assistance and explain their decision in the report as required under section 77.
It has been determined that there has been an increase in the general level of prices in the past financial year. However, in recognition of the exceptional circumstances arising through COVID-19 and the impact it has had on low income households an uplift of 1% will be applied to all assistance in effect. This is 0.5% higher than the inflation-adjusted sums of assistance uprated according to the September 2020 Consumer Price Index as published on 21 October 2020. Accordingly, the 2021 Regulations are brought forward in reliance on section 28, 30, 32 and 34 to increase the relevant sums by 1% with the payment rounded to the nearest multiple of 5 pence.
The 2021 Regulations provide for a 1% increase to the Young Carer Grant payment (from £305.10 to £308.15); a 1% increase to the Funeral Support Payment of the standard amount that is available towards other funeral costs (from £1,000 to £1,010), a 1% increase to the Funeral Support Payment that is available towards funeral costs where the deceased has left in place a pre-paid funeral plan (from £122.05 to £123.25) and a 1% increase to the Funeral Support Payment of the fee for removing an active implantable medical device from the deceased (from £20.35 to £20.55); a 1% increase to Best Start Grant Pregnancy and Baby First Child Payment (from £600 to £606) and Subsequent Child Payment and Extra Payment for twins/triplets (from £300 to £303), The Early Learning Payment (from £250 to £252.50) and The School Age Payment (£250 to £252.50); and a 1% increase to the Child Winter Heating Assistance (from £200 to £202).
The opportunity has also been taken to make minor technical amendments to the Funeral Expense Assistance (Scotland) Regulations 2019 by removing a reference to Directive 2004/38/EC which is no longer needed in light of recent amendments to those regulations and to the Winter Heating Assistance for Children and Young People (Scotland) Regulations 2020 by removing ‘Swiss confederation’ from a list of European Economic Area states and inserting a reference to Switzerland in the correct place instead (Switzerland is not an European Economic Area state but had been included in that list by mistake).
Regulation 4 of the Carer’s Assistance (Young Carer Grants) (Scotland) Regulations 2019 is also amended so that applications from outside the UK can be made in respect of periods of care beginning on or after 22 July 2019, rather than 21 October 2019 as currently provided for. This will ensure that people applying from outside the UK can do so on the same basis as those who applied in Scotland for periods of care which began up to 13 weeks before 21 October 2019.
Regulation 6 of the 2021 Regulations makes an amendment remedying a defect within a provision of the Social Security Benefit (Dependency) Regulations 1977 to reflect the fact that persons in respect of whom child benefit is payable after their sixteenth birthdays are no longer referred to as children, but as qualifying young persons.
The Cabinet Secretary for Finance announced the proposed rates of devolved social security assistance for 2021-22 to the Scottish Parliament during the Scottish Budget on 28 January 2021. In accordance with the Social Security (Scotland) 2018 Act, a draft of these Regulations is laid before the Scottish Parliament for approval by resolution.
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Consultation There is no statutory requirement to consult on this instrument. However, a comprehensive report1, including analytical evidence, on the measures that could be used to uprate devolved social security assistance was provided to the Social Security Committee and the Scottish Commission on Social Security to allow them to engage on the proposed uprating policy. The analytical report was prepared to provide a detailed review of relevant inflation measures to inform the options available to uprate devolved social security assistance. The Policy Paper set out the Scottish Government’s proposed approach to uprating and recommended the use of the September Consumer Price Index with the payment rounded to the nearest multiple of 5 pence. The section 77 report: duty to consider effects of inflation2 was published following the Scottish Budget. This provided the Social Security Committee and the Scottish Commission on Social Security with the approach to uprating for the 2021-22 financial year. These Regulations were also scrutinised by the Scottish Commission on Social Security (SCoSS) as required under section 97 of the 2018 Act. SCoSS board members were provided with the draft Regulations and their report on the Regulations was received on 8 February 2021 and contained 8 recommendations. Their report was also laid before the Scottish Parliament and published online3. The Scottish Government’s response to SCoSS’s report will be published at the same time as these draft Regulations are laid in the Scottish Parliament.
Impact Assessments The full range of impact assessments were considered and completed where necessary for the Social Security (Scotland) Bill and have been published for Funeral Expense Assistance4, Young Carer Grant5, Best Start Grant6 and Child Winter Heating Assistance7. Impact assessments for any new Scottish assistance will be undertaken at the point where policy is being developed and regulations are being drafted. As the increase to Young Carer Grant, Funeral Support Payment, Best Start Grant and Child Winter Heating Assistance ensures that the assistance people are eligible for in 2021 at least keep pace with inflation, then it is considered that there is no significant impact on the private, voluntary or public sector.
Financial Effects A Financial Memorandum8 was completed prior to introduction of the Social Security (Scotland) Bill. The Financial Memorandum states that funding for existing benefits will be transferred from the UK Government under the terms of the Fiscal Framework agreement. The Financial Memorandum also considers the costs of uprating and recognises that the methodology of uprating of benefits for inflation is a source of financial risk. This is because any future
1https://www.parliament.scot/S5_Social_Security/General%20Documents/20190902_CabSecSSOP_to_Convener_uprating_m easures.pdf 2 Social Security assistance - effects of inflation: report 2020-2021 - gov.scot (www.gov.scot) 3 2021+February+8+-+Uprating+2021+Report.pdf (www.gov.scot) 4 https://www.gov.scot/publications/consultation-funeral-expense-assistance-regulations/pages/8/ 5 https://www.gov.scot/publications/consultation-young-carer-grant-regulations/pages/8/ 6 Best Start Grant: business and regulatory impact assessment - gov.scot (www.gov.scot) 7 The Winter Heating Assistance for Children and Young People (Scotland) Regulations 2020 (legislation.gov.uk) 8 http://www.parliament.scot/S5_Bills/Social%20Security%20(Scotland)%20Bill/SPBill18FMS052017.pdf
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policy differentials between Scotland and the UK for the method of uprating could result in additional pressures on the Scottish Budget. The Young Carer Grant and Child Winter Heating Assistance are new forms of assistance, therefore there is no funding transfer from the UK government and the cost of these and the uprating increase will be met from the existing Scottish Budget. The Funeral Support Payment and Best Start Grant are not uprated annually by inflation in England and Wales and therefore the cost of the uprating increase will be met from the existing Scottish Budget. The cost of the increase is included in the benefit expenditure forecasts set out in the Scottish Fiscal Commission Economic and Fiscal Forecasts January 20219.
Scottish Government Social Security Directorate 10 February 2021
9 Forecasts | Scottish Fiscal Commission