Ssc/S5/20/14/A Social Security Committee

SSC/S5/20/14/A

SOCIAL SECURITY COMMITTEE

AGENDA

14th Meeting, 2020 (Session 5)

Thursday 27 August 2020

The Committee will meet at 10.00 am in a virtual meeting and be broadcast on scottishparliament.tv.

1. Declaration of interests: Rachael Hamilton MSP will be invited to declare any relevant interests.

2. Decision on taking business in private: The Committee will decide whether to take item 5 in private.

3. Winter Heating Assistance for Children and Young People (Scotland) Regulations 2020: The Committee will take evidence on the Scottish Commission on Social Security's scrutiny report on the draft regulations from

Dr Mark Simpson and Judith Paterson, Members of the Scottish Commission on Social Security.

4. Subordinate legislation: The Committee will consider the following negative instrument - The Personal Independence Payment (Transitional Provisions) Amendment (Scotland) Regulations 2020 (SSI 2020/218)

5. Winter Heating Assistance for Children and Young People (Scotland) Regulations 2020 (in private): The Committee will consider the evidence heard earlier in the meeting.

Anne Peat Clerk to the Social Security Committee Room T3.60 The Scottish Parliament Edinburgh Tel: 0131 348 5182 Email: [email protected] SSC/S5/20/14/A

The papers for this meeting are as follows—

Agenda Item 3

Letter and report from SCoSS SSC/S5/20/14/1

SPICe paper SSC/S5/20/14/2

Agenda Item 4

Note by the clerk/SSI instrument/SSI policy note SSC/S5/20/14/3

SSC/S5/20/14/1

Scottish Commission on Social Security c/o Secretariat Area 1C South (Mail Point 6) Victoria Quay Edinburgh EH6 6QQ

[email protected]

27 July 2020

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 report on The Winter Heating Assistance for Children and Young People (Scotland) Regulations 2020. The report was prepared after the Commission received the draft regulations from Scottish Ministers, in accordance with the ‘super-affirmative’ procedure outlined in section 97 of the Act.

A copy of the report has been provided to the Cabinet Secretary and published on our temporary website: (https://www.gov.scot/groups/scottish-commission-on-social- security/).

Yours sincerely,

Dr Sally Witcher OBE Chair Scottish Commission on Social Security SSC/S5/20/14/1

Scottish Commission on Social Security

Scrutiny report on draft regulations: Winter Heating Assistance for Children and Young People (Scotland) Regulations 2020

Submitted to the Scottish Government and the Scottish Parliament’s Social Security Committee on 27th July 2020.

SSC/S5/20/14/1

Contents

Summary of recommendations and observations ...... 3 1. Introduction ...... 5 2. Approach to Scrutiny ...... 6 3. Rights and Principles ...... 8 4. Policy intentions...... 12 6. Eligibility ...... 14 7. Applications and determinations ...... 18 8. Delivery ...... 19 9. Annex - Scrutiny timeline...... 21 SSC/S5/20/14/1

Summary of recommendations and observations

Recommendation 3: The Scottish Government should clarify further the rationale for targeting CWHA only on the highest rate care component and whether it intends to extend eligibility in the future.

Recommendation 4: The Scottish Government should produce clear, detailed, accessible guidance to ensure clarity about the process when CWHA becomes payable due to a retrospective award of DLA.

Recommendation 5: To maximise take-up amongst 16 to 18-year- olds, the Scottish Government should ensure that information on CWHA and interactions with DLA and Personal Independence Payment is clear and reaches young people and those who support them.

Recommendation 6: As soon as an opportunity arises to review CWHA, the Scottish Government should consider the feasibility of widening the qualification window to include children and young people in receipt of DLA at any point through the winter months. SSC/S5/20/14/1

Recommendation 7: The Scottish Government should extend CWHA entitlement to children in residential care so that they are treated the same as children in hospital.

Recommendation 8: The Scottish Government should remove regulation 4 (2), regarding a payment condition not being met where the individual has died before the qualifying week, and ensure there is clear, sensitive guidance in place concerning the recovery of payments.

Recommendation 9: The Scottish Government should ensure consistency across all types of social security assistance regarding the test of residency in Scotland. Recommendation 10: The Scottish Government should clarify what will be treated as the day of application.

Observation 2: SCoSS welcomes the Scottish Government’s expressed intention to amend the regulations to make it clear that anyone who applies for CWHA will have a right to a determination and appeal.

Recommendation 11: The Scottish Government should develop processes for paying assistance to others that both protect and empower young people; and provide clarification that regulations are not required for appointees to act for children and young people in relation to applications, awards and payments.

Observation 3: SCoSS would welcome further clarity about the implications of the necessary DWP data not being made available when expected. SSC/S5/20/14/1

1. Introduction

The Scottish Commission on Social Security (SCoSS) welcomes the draft Regulations enabling the introduction of Winter Heating Allowance for Children and Young People, which we will refer to in this report as Child Winter Heating Assistance (CWHA). This new £200 annual lump sum payment will provide additional support with winter fuel costs to children and young people who are in receipt of the highest rate of Disability Living Allowance (DLA) care component.

SCoSS appreciates just how critical this support is likely to be at this time, due to increased financial hardship and especially with the anticipated increase in fuel poverty resulting from COVID-19.1

Winter Heating Assistance was contained in regulation 17 of the draft Disability Assistance for Children and Young People (Scotland) Regulations 2020 (DACYP). The introduction of these separate regulations for CWHA is a welcome pragmatic response to the unavoidable delays to the laying of the DACYP Regulations, due to the challenging context of COVID-19. Crucially, this will allow CWHA to be payable in time for the coming winter for children and young people on DLA. Entitlement will then later be broadened to include children and young people receiving Child Disability Payment once the DACYP regulations come into effect.2

Recommendation 11 in our scrutiny report on the draft DACYP regulations3 called on the Scottish Government to attend to a number of technical issues concerning CWHA. In her letter referring the draft CWHA regulations to SCoSS, the Cabinet Secretary confirmed that a

1 http://www.social-policy.org.uk/spa-blog/tackling-fuel-poverty-the-implications-of-covid-19-by-bakeret-al/ 2 The DACYP draft regulations provided for a Child Disability Payment for eligible children and young people. 3SCoSS’s report is available here: https://www.gov.scot/binaries/content/documents/govscot/publications/independent- report/2020/03/the-disability-assistance-for-children-and-young-people-scotland-regulations-2020- scrutiny-report-on-draft-regulations/documents/the-disability-assistance-for-children-and-young- people-scotland-regulations-2020-scrutiny-report-on-draft-regulations/the-disability-assistance-for- children-and-young-people-scotland-regulations-2020-scrutiny-report-on-draft- regulations/govscot%3Adocument/FINAL%2BSCoSS%2BReport%2Bon%2Bthe%2Bdraft%2BDACY P%2B%2528S%2529%2BRegs%2B2020.pdf SSC/S5/20/14/1 number of revisions had been made to take these into account, including:  Clarifying in regulations that children who get DLA and live in other parts of the UK are not eligible;  Ensuring that children are entitled if the relevant rate of DLA for the qualifying week is awarded late as a result of, for instance, an appeal;  Inclusion of a provision to allow access to CWHA when DLA is awarded to correct an official error;  Clarification that the payment is made on ‘per individual’ basis rather than ‘per household’.4 This scrutiny report on the separate draft CWHA regulations builds on our scrutiny of the related provision in the draft DACYP regulations.

2. Approach to Scrutiny As always, this report has been completed in accordance with our pre- legislative scrutiny function, as set out in sections 22 and 97 of the Social Security (Scotland) Act 2018.5 Section 97 requires us to carry out our role with regard to the Scottish social security principles and any relevant provisions of human rights law. The Commission’s scrutiny was also informed by our draft scrutiny framework.6 The draft CWHA regulations were formally referred to SCoSS on 14 May 2020. Since then, we have had ongoing engagement with Scottish Government officials. This has provided welcome opportunities for SCoSS to request further information including, for example, on the wider fuel poverty landscape,7 thereby enabling us to inform and influence the development of the draft regulations and allow issues to be addressed prior to regulations being laid. Clearly, time can also be an issue when it comes to carrying out meaningful stakeholder

4 https://www.gov.scot/publications/letter-from-the-cabinet-secretary-and-draft-winter-heating- assistance-regulations-14-may-2020/ 5 Social Security (Scotland) Act 2018 asp 9 s1 6 https://www.gov.scot/publications/scottish-commission-on-social-security-draft-scrutiny-framework/ 7https://www.gov.scot/binaries/content/documents/govscot/publications/correspondence/2020/05/lette r-from-the-cabinet-secretary-and-draft-winter-heating-assistance-regulations-14-may- 2020/documents/briefing-from-scottish-government-to-scoss-on-schemes-to-reduce-fuel- poverty/briefing-from-scottish-government-to-scoss-on-schemes-to-reduce-fuel- poverty/govscot%3Adocument/SG%2BBriefing%2Bon%2BFuel%2BPoverty%2BSchemes.pdf SSC/S5/20/14/1 engagement. On this occasion we were able to undertake some limited consultation with stakeholders, building on our previous CWHA evidence-gathering through our DACYP consultation. We sought views on the draft CWHA regulations from stakeholders, including through a public Twitter call. We thank those organisations that responded. Their submissions added real value to our scrutiny and have supported the compilation of this report.8 SCoSS acknowledges that there are exceptional demands on Scottish Government officials at the current time. Moreover, there will always be a balance to be struck between getting the assistance people need in place rapidly, and allowing time to ensure that draft regulations referred to us are of high quality, clear and complete. This is of the utmost importance to ensuring our scrutiny process is as efficient and effective as it can be. Otherwise, while the aim may be to save time, there is a risk that much time can be consumed by the need to repeatedly raise queries and make adjustments in light of new information. On this occasion, it would have been helpful if the Scottish Government had been able to confirm, in advance of referring the draft regulations to SCoSS, its approach in relation to the average Scottish temperature in winter and the impact on entitlement for exportable cases. SCoSS would also have found it very helpful had the Scottish Government been able to provide impact assessments at the point the draft regulations were referred to us. The time lag between the referral of the draft regulations and the impact assessments (received on 17th June), and the lack of clarity concerning policy intent, unavoidably affected our ability to fully assess and scrutinise the regulations and consequently increased the number of times we had to seek further information from Scottish Government officials. However, we accept that factors beyond our knowledge or anyone’s control may have meant that on this occasion there was no alternative, given the desirability of having CWHA in place for the forthcoming winter and the extent of Covid-19-related demands on officials. These are matters we can explore further with the Scottish Government as we develop a protocol setting out how we work together. The timeline of our scrutiny is contained in the Annex.

8 https://www.gov.scot/binaries/content/documents/govscot/publications/correspondence/2020/05/letter -from-the-cabinet-secretary-and-draft-winter-heating-assistance-regulations-14-may- 2020/documents/draft-winter-heating-assistance-regulations-submissions/draft-winter-heating- assistance-regulations- submissions/govscot%3Adocument/Draft%2BWinter%2BHeating%2BAssistance%2Bregulations%2B -%2Bsubmissions.pdf

SSC/S5/20/14/1

Observation 1: In the interests of good use of limited time, and acknowledging that factors beyond anyone’s control may prevent it, SCoSS asks the Scottish Government to make every effort to ensure clarity on all key policy areas and that impact assessments are provided at the same time that draft regulations are referred to us. SCoSS welcomed the opportunity to scrutinise standalone regulations for CWHA. Since the Winter Heating Assistance provisions were only one element of the much wider, complex DACYP Regulations our scrutiny of them made up just a small part of our overall report. Separating these out has produced fuller, clearer and more prominent provisions. It has also allowed SCoSS to undertake more in-depth scrutiny within the time available. Winter Heating Allowance and Short Term Assistance, provisions for which were also contained within the DACYP regulations9, are made using powers conferred by different sections of the 2018 Act. Such forms of assistance may be reflected in regulations for other forms of assistance. There is therefore a case for considering whether standalone regulations would be preferable. While acknowledging that time constraints may militate against developing standalone regulations, this could promote greater consistency and facilitate in-depth scrutiny, leading to better policy and improved outcomes for recipients. Recommendation 1: The Scottish Government should consider continuing to produce standalone regulations for provisions like CWHA and Short Term Assistance to enable consistency, clarity and in-depth scrutiny, and thereby better outcomes.

3. Rights and Principles Section 97 of the Social Security (Scotland) Act states that, when exercising its pre-legislative scrutiny function, the Commission must have regard to any relevant human rights instrument ratified by the UK. In common with our previous report on the draft DACYP Regulations, our focus here is on the most relevant provisions of the Convention on the Rights of the Child. The Convention on the Rights of Persons with Disabilities also contains a number of relevant provisions. We are also required to have regard to the Scottish social security principles. In

9 Section 36 and Schedule 10 of Social Security (Scotland) Act. SSC/S5/20/14/1 practice, the requirements/objectives of human rights law and the principles overlap to a significant extent.

As we stated in our DACYP report, and as recognised by both the WHO guidelines and primary legislation,10 disabled children’s enjoyment of the highest attainable standard of health can involve households spending extra on heating.11 To fulfil the right to an adequate standard of living, the state may need to provide support with these additional costs where households face difficulty doing so themselves.12 CWHA is a step towards meeting these rights. In doing so, it can be portrayed as an enhancement of the child’s right to benefit from social security and an example of the Scottish Government prioritising the best interests and “recognising the special needs” of disabled children.13

Correspondingly, CWHA is likely to contribute to the realisation of several of the social security principles, including by ensuring social security contributes to the realisation of other rights in line with principle (b). By providing extra financial resources to households including disabled children, who are disproportionately likely to experience fuel poverty and other forms of poverty,14 it can be expected to reduce levels of both low income poverty and material deprivation15 in line with principle (e) and the statutory targets.16 It can also be argued that providing additional support to a vulnerable group is in the interests of those who have been identified as requiring assistance and can help them feel their dignity is protected by making a contribution towards income adequacy, in line with principles (d) and (g).

10 Fuel Poverty (Targets, Definition and Strategy) (Scotland) Act 2019 s3; WHO guidelines cited in the EQIA 11 Convention on the Rights of the Child article 24; ; Convention on the Rights of Persons with Disabilities article 25 12 Convention on the Rights of the Child article 27; Convention on the Rights of Persons with Disabilities article 12 13 Convention on the Rights of the Child article 3; article 23; article 26 14 See CRWIA and Fairer Scotland Duty reports 15 The material deprivation indicators include “in winter, able to keep accommodation warm enough” – see https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/87 5331/households-below-average-income-quality-methodology-2018-2019.pdf 16 Child Poverty (Scotland) Act 2017 SSC/S5/20/14/1

Prohibition of discrimination in the enjoyment of social rights

Non-discrimination provisions appear in multiple human rights agreements and it is well established that disability falls within this protection even when not explicitly listed as a prohibited ground for discrimination.17 Principle (g) also requires improvement of the Scottish social security system in ways that advance equality and non- discrimination. The absence of formal discrimination against disabled people is not sufficient to comply with the non-discrimination provisions. Special measures may be required to eliminate substantive discrimination, enabling people with impairments to participate in society and enjoy their other rights on equal terms with others.18 However, the approach embodied by these draft Regulations creates some differences of treatment that may require justification. The targeting of CWHA at children in receipt of the highest rate care component of DLA excludes both children in receipt of DLA at lower rates and households in which only an adult is disabled. Yet such households with a disabled person are also disproportionately likely to be fuel poor and to contain poor children as per the Fuel Poverty (Targets, Definition and Strategy) (Scotland) Act 2019. This issue is explored further in our report. Social security principle (g) on the advancement of equality and non-discrimination may be relevant to consider here. Principle (h) states that the Scottish social security system should be efficient and deliver value for money. The Scottish Government’s explanation that it is targeting support at households in which children are known to require care at night – so that warmer temperatures are required for longer periods – seems to speak to this principle. However, it is always important to reflect on whether efficiency and value for money are achieved at the expense of fairness.

17 International Covenant on Economic, Social and Cultural Rights article 2(2); European Convention on Human Rights article 14; Convention on the Rights of the Child article 2(1); Convention on the Rights of Persons with Disabilities article 5; European Social Charter preamble; see also CESCR general Comment 19 on the right to social security 18 CESCR General Comment 20 on non-discrimination in economic, social and cultural rights SSC/S5/20/14/1

The best interests of the child and the right to a voice

Children have a right to express their views on matters affecting them and to be heard in administrative proceedings19, while disabled people in general have a comparable right to an environment that facilitates their participation in public affairs.20 This falls within the requirement of principle (f) that the social security system should be designed with the people of Scotland. It has implications for the policy development process, which ought to provide opportunities for input from disabled children themselves, and not just from parents, carers and organisations or professionals speaking on their behalf.

In the Children's rights and wellbeing impact assessment (CRWIA), the Scottish Government states that direct consultation with children and young people on the development of these Regulations was not possible due to COVID-19. This is undoubtedly true. However, the policy reflected in the current regulations was developed alongside policy for Child Disability Payment, long before Covid-19 was an issue. The intent is essentially unchanged from that embodied by Part 6 of the DACYP Regulations, prior to which there was no equivalent obstacle to involving children in policy development. While the Scottish Government has informed the Commission that some engagement with children and young people and their families took place in the development of policy on CDP, we have not seen any document setting out how this process informed the development of policy on CDP in general or CWHA in particular. Indeed, the CRWIA for CDP makes no mention of direct involvement of children and young people in its development. In line with the Lundy model of child participation,21 it is important that children and young people are not only consulted, but have a genuine influence and are seen to have an influence on policy decisions affecting them.

Recommendation 2: The Scottish Government should ensure that the voices of children and young people inform the development of assistance that affects them and that their views inform the future implementation and evaluation of the CWHA.

19 Convention on the Rights of the Child article 12; Convention on the Rights of Persons with Disabilities article 7 20 Convention on the Rights of Persons with Disabilities article 29 21 https://ec.europa.eu/info/sites/info/files/lundy_model_of_participation.pdf SSC/S5/20/14/1

4. Policy intentions

Overview

The purpose of CWHA is to recognise that children and young people in receipt of the highest rate of DLA care component will require significant levels of support both through the day and night. The payment aims to mitigate some of the increased fuel costs these individuals and families experience as a result of requiring to heat their homes through the night and reflect that, for many families, they will also be present in their home more often throughout the day. The assistance is forecast to benefit around 16,000 children in the first year, at a cost of £3.5m.22 A household is in fuel poverty if it needs to spend more than 10 per cent of income, after having paid housing costs, on reasonable fuel needs and is not left with enough money to maintain an acceptable standard of living. This is set out in the Fuel Poverty Act, which also sets out a reasonable temperature for the home to support wellbeing and how many hours it should be heated to that temperature. If someone has a long-term health condition or is in receipt of a disability benefit such as DLA or Personal Independence Payment, they are assumed to need a warmer home e.g. 23 degrees Celsius for the living room instead of the standard 21 degrees. If they are at home morning or afternoon on weekdays, they are assumed to need to heat their home for 16 hours every day, instead of the standard 9 hours on a weekday and 16 hours at the weekend. Thus, these higher requirements and consequently higher fuel costs mean that households where someone is on a disability benefit need a higher level of income to maintain a healthy temperature and to stay out of fuel poverty. Providing a cash lump sum in the winter to families of disabled children with high support needs is one way (although not the only possible way) of reducing their exposure to fuel poverty. It may also contribute to addressing child poverty targets more generally, given evidence that families with disabled children are disproportionately likely to be poor.23

22 https://www.gov.scot/publications/consultation-disability-assistance-scotland-scottish-government- response/pages/4/. 23 The CRWIA notes, for example, that “Child material deprivation in households containing a disabled person reaches 20% compared to 8% of households without a disabled person.” SSC/S5/20/14/1

Targeting assistance The Scottish Government’s impact assessments24 reflect a well- established evidence base that households including a disabled person can have additional heating requirements and are disproportionately likely to experience poverty, including fuel poverty. However, the statistics presented show the relationship between poverty and disability generally, rather than a specific link between poverty and child disability. While the Fuel Poverty Act identifies people on any rate of DLA care or mobility component as having extra fuel costs, the CWHA is targeted only at children and young people on the highest rate of DLA care component. The reasoning is that, because entitlement conditions for this rate of DLA require a child to need attention or supervision both day and night to qualify, fuel costs will be higher still for these households. This effectively targets the payment at those who need to heat their home for 24 hours a day rather than the 16 hours a day specified in the Fuel Poverty Act. The Scottish Government is developing a fuel poverty strategy, as required by the Act. Moreover, legislative competence for winter fuel- related benefits will transfer to Scottish Ministers in 2022, at which point there should be an opportunity to review and simplify the plethora of different forms of winter fuel-related provision. In line with the principle of continuous improvement and the objective of progressive realisation of social and economic rights, the Scottish Government should continue to consider the appropriateness of extending additional support with energy costs to a wider range of households including a disabled person as it develops policy on devolved disability and winter heating assistance. Recommendation 3: The Scottish Government should clarify further the rationale for targeting CWHA only on the highest rate care component and whether it intends to extend eligibility in the future.

Retrospective awards SCoSS welcomes the clear policy intention, reflected in simple, straightforward rules in the draft CWHA Regulations, for accessing this assistance and the automation of payments through a shared data agreement with DWP. This is the first time SCoSS has scrutinised regulations which provide for a payment to be administered mainly on a

24 Equality Impact Assessment; Business and Regulatory Impact Assessment; Child Rights and Wellbeing Impact Assessment; and the Island Communities Impact Assessment. The Scottish Government also provided a report under the Fairer Scotland Duty. SSC/S5/20/14/1 fully automated basis. The automation of payments where possible, particularly where relatively small sums of money are involved, is consistent with social security principle (h) and the Charter commitment to make processes and systems simple, clear and timeous.25 However, in circumstances where DLA care component at the highest rate is awarded retrospectively, for example following a revision, supersession or appeal, the policy intention, and hence the regulations, could be more explicit. Clear, detailed guidance will be needed to ensure consistency of decision-making in such situations. Clearly, take-up will be maximised if payments can still be made automatically. However, if this is not practicable, guidance will need to clarify the process to be followed. We note a possible role here for DWP. A child retrospectively awarded DLA at the qualifying rate would have to apply for CWHA, so ideally when a child in Scotland receives a retrospective award they would be signposted to apply for CWHA. Recommendation 4: The Scottish Government should produce clear, detailed, accessible guidance to ensure clarity about the process when CWHA becomes payable due to a retrospective award of DLA.

6. Eligibility

16 to 18-year-olds

Young people under age 18 are eligible for CWHA as long as they are on the right rate of DLA. From age 16, the usual process has been to invite young people on DLA to claim Personal Independence Payment (PIP), which would mean losing eligibility for CWHA. However, Scottish Government officials have confirmed that young people in Scotland who reach 16 from September 2020 will be able to stay on DLA until age 18 if they choose. This is called the ‘Rising 16’ policy.26 In terms of eligibility for CWHA under these draft regulations, the Rising 16 policy essentially means that 16 to 18-year-olds will be eligible for CWHA in much the

25 “Make communications, processes and systems as simple and clear as possible by testing them with the people who will use them” https://dgxmvz0tqkndr.cloudfront.net/production/images/general/Our-Charter_1.pdf 26 Now in the Personal Independence Payment (Transitional Provisions) Amendment (Scotland) Regulations 2020

SSC/S5/20/14/1 same way as if the introduction of Child Disability Payment (the replacement in Scotland for DLA) had not been delayed.

Either way (under DLA or under Child Disability Payment), this does mean that young people under 18 who choose to claim PIP instead will not be eligible for CWHA. Benefit transitions generally for young disabled people are complex and often not well understood. This can lead to young people not getting all their entitlements or not being aware of the implications of choices they make. For example, they may be incentivised to stay on DLA so as to keep CWHA, when in practice they might be better off on PIP. In disseminating information about CWHA, the Scottish Government should therefore make particular efforts to ensure information is clear about 16 to 18-year-olds’ entitlement.

Qualifying Week

The eligibility date for claiming the CWHA is restricted to a one week period in September. SCoSS understands that this date has been set to allow for DWP data transfer processing/ data cleansing to be done in advance, and to align with DWP benefits. It is unclear whether this is a temporary expedient arrangement to enable the introduction of CWHA for the coming winter, or whether it is intended as a longer term arrangement and, if so, how much scope there would be to change it.

Overall, SCoSS questions whether there is a need to restrict eligibility to a qualifying week at all, not least because the regulations provide for eligibility for CWHA to be determined with and without an application. We would like to understand why it would not be possible for any household in which a child/young person receives DLA at the appropriate rate at any point during the winter to be eligible for CWHA. Recommendation 6: As soon as an opportunity arises to review CWHA, the Scottish Government should consider the feasibility of widening the qualification window to include children and young people in receipt of DLA at any point through the winter months. SSC/S5/20/14/1

Furthermore, SCoSS noted in its report on the DACYP draft regulations that, in time, the Scottish Government aims to improve the way WHA is delivered, including to rural households who are not on the gas grid and may have higher upfront costs. It would seem sensible to consider the feasibility of paying WHA early to off-grid households, reviewing implementation and comparing the impact across urban and rural areas, when reviewing the case for the qualifying week.

Residential Care

SCoSS notes that there is a distinction drawn in the regulations between children and young people in hospital and those in residential care. Those in hospital will receive CWHA but those in residential care will not.

This difference was not highlighted in the Scottish Government’s policy note accompanying the draft regulations and we are grateful to SCoSS stakeholders for pointing it out. We understand from the Scottish Government that underlying this is a view that hospital admissions are temporary whereas moving into residential care tends to be for a longer period, and perhaps even permanent.

SCoSS considers this approach to be overly restrictive. It cannot safely be assumed that a stay in residential care would be long-term, or that in hospital it would be short-term. Children and young people who normally live at home and have regular short breaks in a care home could miss out depending on the timing of the break in relation to the qualifying week for the CWHA. Short-term breaks can benefit the wellbeing of all concerned and there should be no disincentive to take them when needed. Moreover, the onus should not be on families to know enough about the CWHA to be able to base a decision on the timing of short breaks. Furthermore, winter heating assistance for disabled children is being introduced ahead of winter heating assistance for people over pension age, which will replace the current Winter Fuel Payment. We note that Winter Fuel Payment is paid to people who live in residential care. It would be inconsistent if people over pension age living in residential care were to be eligible for winter heating assistance but not disabled children living in residential care. Recommendation 7: The Scottish Government should extend CWHA entitlement to children in residential care so that they are treated the same as children in hospital. SSC/S5/20/14/1

Death before qualifying week

Draft regulation 4(2), ‘Eligibility rules for winter heating assistance’, states that a payment condition is not met where the individual has died before the qualifying week. Given that benefit entitlement stops when somebody dies, it is not clear why this provision is needed for CWHA and not for other types of assistance. If a payment is made before Social Security Scotland has been notified of the death of a child, there should be clear guidance about whether the payment would be recovered and this should be in line with the social security principle (d) on dignity and respect.

Residency

Each type of Scottish social security assistance has rules about residence in Scotland. In these CWHA regulations, the rule (in regulation 4(1)(c)(ii)) is that to qualify a person must be ‘resident in Scotland’. In contrast, in Best Start Grant regulations, the rule is that a person must be ‘ordinarily resident’ in Scotland, which is the more usual formulation for benefit entitlement. In practice, there may be little difference in the way Social Security Scotland decides about residency. However, in law, the definitions are different, with ‘ordinarily resident’ drawing a clearer line where there is potential residency in more than one country. SCoSS has previously highlighted the importance of ensuring consistency wherever possible when establishing different forms of devolved social security assistance, in the interests of designing out avoidable complexity and promoting simplicity from the outset. This is a case in point. Recommendation 9: The Scottish Government should ensure consistency across all types of social security assistance regarding the test of residency in Scotland.

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7. Applications and determinations

Day of application

Draft regulation 7, dealing with applications, states that an application is to be treated as made on the day—

“(a) it is received by the Scottish Ministers, or (b) when the Scottish Ministers receive evidence of a genuine and sufficient link to Scotland”. Clearly, the day an application is received and the day evidence of a genuine and sufficient link to Scotland is received could be different days. Furthermore, the day of application is relevant to the right to getting a determination and therefore onward redetermination and appeal rights. It would therefore be helpful to clarify which day will take priority.

Recommendation 10: The Scottish Government should clarify what will be treated as the day of application.

Right to a Determination

At present the draft Regulations only place a duty to make a determination on an application if the individual is thought to be entitled to CWHA. However, the Social Security (Scotland) Act (sections 37 and 40) requires that a determination be made and notification issued whatever the outcome. This is an important procedural point, as a notification of determination is required in order to be able to request redeterminations and appeals.

Having raised this with Scottish Government officials we welcome their confirmation that regulation 6 will be re-drafted to make clear that anyone who applies for CWHA – however that application is decided – will receive a determination and will, therefore, have a right to a redetermination and a subsequent appeal.

8. Delivery

Provision for Appointees

Draft regulation 13 allows Social Security Scotland to make a young person’s £200 payment to someone else, for example their parent, if that is what the young person prefers, without having someone formally appointed to act on their behalf in every aspect of their application and award.

Officials have assured the Commission that guidance will underpin the process of paying assistance to another person to safeguard young people from potential financial abuse. In developing this process, there is also a need to take the views of young people into account and, in line with the Charter, ensure these powers do not just protect young people from harm but actively support them to play a full and active part in society, for example, by being able to choose how their social security assistance is managed.

Provision for formal appointments is in the Social Security (Scotland) Act 2018, and changes to these are planned in the Social Security Tribunal Membership and Administration Bill. The Commission would welcome clarification that draft regulation 13 is not required to provide for payments to appointees and that, more generally, regulations are not required for appointees to act for children and young people in other aspects of the application and award.

On a technical note, draft regulation 13(2) provides for switching the person to whom continued payment is made. While this would be relevant to DACYP, where regular payments are made, it seems unnecessary for CWHA where there is one payment per year. Rather, we would suggest that payment should not default to another person who received the payment the year before but that the situation is considered afresh.

SSC/S5/20/14/1

Reliance on DWP data

The delivery of CWHA to schedule depends on the receipt of data from DWP to identify eligible households at a time when, as the Cabinet Secretary has acknowledged, DWP faces considerable operational pressures. We are pleased that the Scottish Government nonetheless reports that preparatory work is “progressing well” and that it is confident of delivering on time.

Observation 3: SCoSS would welcome further clarity about the implications of the necessary DWP data not being made available when expected.

SSC/S5/20/14/1

9. Annex - Scrutiny timeline

14 April 2020: Draft policy note on CWHA provided by Scottish Government officials

13 May 2020: SCoSS Board meeting: Briefing from Scottish Government official on draft policy note

14 May 2020: Draft CWHA Regulations referred to SCoSS by the Cabinet Secretary for Social Security and Older People

20 May 2020: SCoSS requested written submissions from stakeholders

16 June 2020: SCoSS Board meeting: Members discussed issues to include in the SCoSS scrutiny report and then received further briefing from Scottish Government

17 June 2020: Scottish Government provided CWHA impact assessments

6 July 2020: Informal SCoSS meeting to consider draft report

SSC/S5/20/14/2

Social Security Committee

15th Meeting, 2020 (Session 5), Thursday 27 August 2020

Scottish Commission on Social Security report on the draft Winter Heating Assistance for Children and Young People (Scotland) Regulations 2020

Introduction

This paper suggests issues that the Committee may wish to raise with the Scottish Commission on Social Security (SCoSS) on their report on the draft Winter Heating Assistance for Children and Young People (Scotland) Regulations 2020 (referred to as the draft CWHA regulations).

The draft CWHA regulations were formally referred to SCoSS on 14 May 2020. SCoSS reported on 27 July making 11 recommendations.

The SCoSS report is included with the papers for this meeting. SCoSS use a ‘Scrutiny Framework’ which includes consideration, not just of whether the regulations meet the policy intent, but also of broader issues related to how the proposals reflect the eight social security principles.

CWHA overview

CHWA is a new lump sum annual payment of £200 for children and young people with serious disabilities. It will be paid where children and young people are in receipt of the highest rate of the care component of Disability Living Allowance in the qualifying week each year.

The Scottish Government believes that CWHA is needed because children and young people who receive the highest rate care component require significant support. This means that they have increased fuel costs from having to use more heat and electricity.1

The assistance is forecast to benefit around 16,000 children in the first year, at a cost of £3.5m.2

1 Scottish Government policy note 2 https://www.gov.scot/publications/consultation-disability-assistance-scotland-scottish- government-response/pages/4/ SSC/S5/20/14/2

The Scottish Government’s intention is that entitlement will later be broadened to include children and young people receiving Child Disability Payment once the Disability Assistance for Children and Young People (Scotland) Regulations 2020 (DACYP) regulations come into effect.3 These regulations were delayed because of COVID (see below for more detail).

Policy development

In their 2016 Programme for Government, the Scottish Government set out their commitment to pay Winter Heating Assistance to families with a severely disabled child by the end of 2020.4

Winter Heating Assistance for severely disabled children was contained in regulation 17 of the draft Disability Assistance for Children and Young People (Scotland) Regulations 2020 (‘the DACYP regulations’). Because of Covid-19, these regulations have been delayed. Separate CHWA regulations have been drafted instead to allow the payment to be made in winter 2020.

The SCoSS’s scrutiny report on the draft DACYP regulations called on the Scottish Government to address a number of technical issues concerning CWHA:

‘Recommendation 11: The Scottish Government should attend to the technical issues noted in relation to Child Winter Heating Allowance: • To amend the draft regulations to clarify that children who get DLA and live outside Scotland cannot access Winter Heating Assistance; • To consider adding a provision allowing access to Winter Heating Assistance when DLA is awarded following a revision, supersession or appeal; • To consider adding a provision to allow access to Winter Heating Assistance when CDP is awarded to correct an official error; • To clarify in regulations whether there is one £200 payment per child or per household.’

In her letter5 referring the draft CWHA regulations to SCoSS, the Cabinet Secretary confirmed that the draft regulations contained a number number of revisions, including:

• ‘Clarifying in regulations that children who get DLA and live in other parts of the UK are not eligible; • Ensuring that children are entitled if the relevant rate of DLA for the qualifying week is awarded late as a result of, for instance, an appeal; • Inclusion of a provision to allow access to CWHA when DLA is awarded to correct an official error;

3 Scottish Government policy note 4 The Winter Fuel Payment is currently a universal, annual tax-free payment made to pensioners to help towards their winter heating costs. Winter Fuel Payment was introduced in 1997 aimed at tackling fuel poverty amongst pensioners. 5 http://www.social-policy.org.uk/spa-blog/tackling-fuel-poverty-the-implications-of-covid-19- by-bakeret-al/ SSC/S5/20/14/2

• Clarification that the payment is made on ‘per individual’ basis rather than ‘per household’.’

The separate draft CWHA regulations has allowed the SCoSS to build on their scrutiny of the related provision in the draft DACYP regulations.

Theme 1: Consultation and standalone regulations

One of the statutory principles for social security is that: “it is designed with the people of Scotland and based on evidence.”6

The SCoSS was able to undertake some limited consultation with stakeholders, building on its previous CWHA evidence-gathering through their DACYP consultation. It sought views on the draft CWHA regulations from stakeholders, including through a public Twitter call.

The SCoSS report highlights information that the Commission would have found useful to have received earlier in the process to inform their scrutiny e.g. the impact assessments and information on average Scottish winter temperatures. However, it also acknowledges the exceptional pressures on Scottish Government officials at this time and that,

“…on this occasion there was no alternative, given the desirability of having CWHA in place for the forthcoming winter and the extent of Covid- 19-related demands on officials. These are matters we can explore further with the Scottish Government as we develop a protocol setting out how we work together.” (p7)

The SCoSS report notes that separating out the regulations has allowed greater scrutiny which would not otherwise have happened. It recommends (rec 1) that,

‘The Scottish Government should consider continuing to produce standalone regulations for provisions like CWHA and Short Term Assistance to enable consistency, clarity and in-depth scrutiny, and thereby better outcomes.’

The SCoSS report also notes that in the Children's rights and wellbeing impact assessment, the Scottish Government states that direct consultation with children and young people on the development of these Regulations was not possible due to Covid-19. However, SCoSS points out that the policy was developed alongside the policy for Child Disability Payment, before Covid-19 was an issue. Its report states,

“...we have not seen any document setting out how this process informed the development of policy on CDP in general or CWHA in particular. Indeed, the CRWIA for CDP makes no mention of direct involvement of children and young people in its development.” (p11)

6 Social Security (Scotland) Act 2018 s.1 (f) SSC/S5/20/14/2

It recommends (rec 2) that, ‘The Scottish Government should ensure that the voices of children and young people inform the development of assistance that affects them and that their views inform the future implementation and evaluation of the CWHA’.

The Committee may wish to discuss:

• What were the specific benefits of being able to scrutinise the regulations on a standalone basis, as opposed to being part of a wider set of regulations? • If further standalone regulations are not introduced how can the Scottish Government and SCoSS ensure that maximum scrutiny of regulations is possible? • Whether the level of consultation and engagement was sufficient to meet social security principle(f), i.e. “designed with the people of Scotland on the basis of evidence” and in particular how sufficient was the Scottish Government’s consultation with young people on the policy and draft regulations? • How satisfied SCoSS is that the Scottish Government has taken account of its comments on the draft regulations, when they were part of the draft Disability Assistance for Children and Young People (Scotland) Regulations 2020?

Theme 2: Eligibility, targeting assistance and the qualifying week

The SCoSS report questions the Scottish Government’s rationale for targeting CHWA only on the highest rate care component of DLA(p13). It suggests that the Scottish Government continue to consider the appropriateness of extending additional support with energy costs to a wider range of households including a disabled person as it develops policy on devolved disability and winter heating assistance. Recommendation 3 states:

‘The Scottish Government should clarify further the rationale for targeting CWHA only on the highest rate care component and whether it intends to extend eligibility in the future.’

Qualifying week

The eligibility date for claiming the CWHA is linked to a one-week period in September (regulation 4). SCoSS understands that this date has been set to allow for DWP data transfer processing/ data cleansing to be done in advance, and to align with DWP benefits but it is unclear whether it is intended as a longer-term arrangement and, if so, how much scope there would be to change it.

SCoSS questions, ‘whether there is a need to restrict eligibility to a qualifying week at all, not least because the regulations provide for eligibility for CWHA to be determined with and without an application’ (p15). It recommends that: SSC/S5/20/14/2

‘As soon as an opportunity arises to review CWHA, the Scottish Government should consider the feasibility of widening the qualification window to include children and young people in receipt of DLA at any point through the winter months.’ (Recommendation 6)

Retrospective awards

Most of the awards will be made through an automated process linked to DWP data on the qualifying week. SCoSS welcomes this as it is consistent with social security principle (h) and the Charter commitment to make processes and systems simple, clear and timeous.

However, there may be some cases where an award is made retrospectively, for example following a revision, supersession or appeal. SCoSs states that the policy intention, and hence the regulations, could be more explicit and recommends that detailed guidance on this matter is produced (recommendation 4).

Death before qualifying week

Draft regulation 4(2), provides that a payment condition is not met where the individual has died before the qualifying week. The SCoSS report notes that that benefit entitlement stops when somebody dies, so it is not clear why this provision is needed for CWHA and not for other types of assistance. It recommends, ‘that regulation 4(2) is removed and ensure there is clear, sensitive guidance in place concerning the recovery of payments.’ (recommendation 8).

Residential Care

The draft regulations provide that children and young people in hospital will receive CWHA but those in residential care will not. SCoSS understands that the Scottish Government’s view is that that hospital admissions are temporary whereas moving into residential care tends to be for a longer period, and perhaps even permanent. SCoSS considers this approach to be overly restrictive. It also notes that current Winter Fuel Payment is paid to pensioners living in residential care. It recommends that ‘the Scottish Government should extend CWHA entitlement to children in residential care so that they are treated the same as children in hospital’ (recommendation 7).

16 - 18 year olds

Young people under 18 who choose to claim PIP instead of DLA (or Child Disability) Payment will not be eligible for CWHA (under the ‘Rising 16 policy’, the Scottish Government has confirmed that young people in Scotland who reach 16 from Sept 2020 will be able to stay on DLA until age 18 if they choose). The SCoSS makes a recommendation to the Scottish Government to maximise take up CHWA for young people in this age group (recommendation 5). SSC/S5/20/14/2

The Committee may wish to discuss:

• Has the Scottish Government been clear enough about the policy intention of targeting the payment at only those children receiving the highest rate care component of DLA? • To what extent do the regulations fit with principle (e) i.e. “the Scottish social security system is to contribute to reducing poverty in Scotland” and how well do they align with the Scottish Government’s fuel poverty agenda? • What are the implications of restricting eligibility to the payment to a one-week period in September? • Why is the proposal to not allow children and young people in residential care to receive WHA restrictive? • Whether the regulation stating that a payment condition is not met where the individual has died before the qualifying week is necessary? • Whether the process around retrospective awards of WHA is clear enough? • What needs to happen to ensure that the eligibility situation regarding 16-18 year olds, who may choose to claim PIP, is clear enough?

Theme 3: Issues around consistency and clarity and delivery

The SCoSS report points out the need for the need for consistency and the clarification of some of the wording in the draft regulations e.g.:

Residency conditions: the draft regulations provide that payment is payable where an applicant is resident in Scotland (Reg 4(c)(i)) whereas more commonly the term ‘ordinarily resident is used. Day of application: Reg 7 provides two circumstance which may be treated as the day of application. The report argues that it would be helpful to clarify which day will take priority as this is relevant to redetermination and appeals.

Delivery

Draft regulation 13 allows Social Security Scotland to make a young person’s WHA payment to someone else, for example, their parent, if that is what the young person prefers, without having someone formally appointed to act on their behalf in every aspect of their application and award. SCoSS’s recommendation 11 is that,

‘the Scottish Government should develop processes for paying assistance to others that both protect and empower young people; and provide clarification that regulations are not required for appointees to act for children and young people in relation to applications, awards and payments’.

SSC/S5/20/14/2

DWP will provide Social Security Scotland with the data on eligible households required to make payments. The SCoSS report refers to the considerable operational pressures being faced by the DWP at this time but notes that Scottish Government discussions with the DWP are progressing well on this issue. ‘SCoSS would welcome further clarity about the implications of the necessary DWP data not being made available when expected’ (observation 3, p20)

The Committee may wish to discuss:

• Whether the drafting of the regulations is as clear and consistent as it can be, particularly in relation to residency conditions and the day of application? • Whether the regulations provide sufficient protection for young people where payment is made to another person? • What are the risks of relying on DWP data to identify eligible households, given the operational challenges facing DWP at the moment?

Kate Berry SPICe 19 August 20

SSC/S5/20/14/3

Social Security Committee

14th Meeting, 2020 (Session 5), Thursday 27 March 2020

Subordinate Legislation

Overview of instrument

1. The Committee has been designated lead for the following negative instrument:

The Personal Independence Payment (Transitional Provisions) Amendment (Scotland) Regulations 2020 (SSI 2020/218)

2. The Instrument and Policy Note are attached at Annexe A.

Background 3. On 1 April 2020, executive competence for the disability benefits, including Personal Independence Payments (PIP), Disability Living Allowance for Children (DLAC) and Attendance Allowance transferred from the UK to the Scottish Government. In taking control of these powers, the Scottish Government announced that young people would no longer be required to apply for PIP until age 18 (currently children entitled to DLAC are invited to apply for PIP six months before their sixteenth birthday).

4. These Regulations amend the Personal Independence Payment (Transitional Provisions) Regulations 2013 to enable the Scottish Government to deliver this objective. In doing so, the regulations clarify that:

• Young people in Scotland who turn 16 on or after 1 September 2020 will not be invited to claim PIP until age 18 and can continue receiving DLAC until aged 18 and 6 months. • Young people resident in England and Wales who are entitled to DLAC before their sixteenth birthday on or after 1 September 2020, and then move to Scotland before making a claim for PIP, can remain in receipt of DLAC until age 18 and 6 months. • Where a young person in England and Wales has made a claim for PIP, and then moves to Scotland, this claim will continue until a determination is made. Should the young person withdraw this claim, then they will remain entitled to DLAC until age 18 and 6 months.

Delegated Powers and Law Reform Committee consideration 5. The DPLR Committee reported the instrument to the Parliament on 11 August 2020, because the 28-day rule had been breached (28 days between an instrument being laid and it coming in to force). The Committee was content with the reasons given for the breach.

For Decision 6. The Committee is invited to consider and note the instrument. SSC/S5/20/14/3

SCOTTISH STATUTORY INSTRUMENTS

2020 No. 218

SOCIAL SECURITY

The Personal Independence Payment (Transitional Provisions) Amendment (Scotland) Regulations 2020

Made - - - - at 9.30 a.m. on 17th July 2020 Laid before the Scottish Parliament at 2.30 p.m. on 17th July 2020 Coming into force - - 1st September 2020

The Scottish Ministers make the following Regulations in exercise of the powers conferred by sections 93 and 94 and schedule 10 of the Welfare Reform Act 2012(a) and all other powers enabling them to do so.

Citation, commencement and extent 1.—(1) These Regulations may be cited as the Personal Independence Payment (Transitional Provisions) Amendment (Scotland) Regulations 2020, and come into force on 1 September 2020. (2) These Regulations extend to Scotland.

Amendment of the Personal Independence Payment (Transitional Provisions) Regulations 2013 2.—(1) The Personal Independence Payment (Transitional Provisions) Regulations 2013(b) are amended in accordance with paragraphs (2) to (5). (2) In regulation 3— (a) in paragraph (3), after “paragraphs” insert “(3ZA),”,

(a) 2012 c.5 (“the WRA 2012”). The functions of making provision in regulations in connection with the transition from Disability Living Allowance to the Personal Independence Payment introduced by Part 4 of the WRA 2012, as regards Scotland, transferred to the Scottish Ministers on 1 April 2020. This is both in terms of regulations 3 and 4 of the Scotland Act 2016 (Transitional) Regulations 2017/444, which provide for functions conferred on the Secretary of State by a pre- commencement enactment that would be within the legislative competence of the Scottish Parliament by virtue of exception 1 in reservation F1 in schedule 5 of the Scotland Act 1998 (c.46) (social security schemes) to transfer to the Scottish Ministers on that date; and section 32 of the Scotland Act 2016 (c.11) which provides the meaning of “pre-commencement enactment” in this context. Under section 172(1) of the Social Security Administration Act 1992 (“the 1992 Act”) the Secretary of State is required to refer regulations to the Social Security Advisory Committee (SSAC) for ‘relevant enactments’, as defined in section 170(5). This includes regulations made under the WRA 2012. However, as a result of section 33(1) of the Scotland Act 2016, the function of the Secretary of State to consult the SSAC has not transferred to Scottish Ministers. There is therefore no requirement for the Scottish Ministers to consult the SSAC before making these regulations. (b) S.I. 2013/387; relevant amending instruments are S.I. 2013/2231, S.I. 2013/2689 and S.I. 2016/556. SSC/S5/20/14/3

(b) after paragraph (3) insert— “(3ZA) The Scottish Ministers(a) must not send a notification under paragraph (1) to a DLA entitled person who— (a) reaches the age of 16 on or after 1 September 2020, and (b) is resident in Scotland, until the person reaches the age of 18, after which the Scottish Ministers must send a notification under paragraph (1) to that person as soon as reasonably practicable.”, (c) in paragraph (4), for “Paragraph (3) does” substitute “Paragraphs (3) and (3ZA) do”, (d) in paragraph (4A) for “paragraph (3)” in both places where it appears substitute “paragraphs (3) or (3ZA)”. (3) After regulation 4, insert—

“Claims by persons entitled to disability living allowance for personal independence payment upon becoming resident in Scotland 4A.—(1) Paragraphs (2) to (4) apply where a DLA entitled person who reaches the age of 16 on or after 1 September 2020— (a) has been sent a notification under regulation 3(1) whilst resident in England or Wales, and (b) becomes resident in Scotland before an assessment determination is made. (2) From the date on which the person becomes resident in Scotland— (a) the notification sent under regulation 3(1) ceases to have effect, (b) regulations 8 to 11 are of no effect in respect of that notification, (c) regulations 3(3ZA) and 18A apply in respect of the person, and (d) for the purposes of regulation 4, the person is treated as though they have not been sent a notification under regulation 3(1). (3) If the person described in paragraph (1) has made a claim for personal independence payment— (a) for the avoidance of doubt, nothing in paragraph (2) affects the validity of a claim for personal independence payment that has been made in pursuance of the notification, (b) the claim will continue towards an assessment determination, unless it is withdrawn under regulation 31 (withdrawal of claim) of the Claims and Payments Regulations. (4) If the person described in paragraph (1) has made a claim for personal independence payment in pursuance of the notification, and then withdraws their claim under regulation 31 (withdrawal of claim) of the Claims and Payments Regulations before an assessment determination is made, regulation 15 does not apply in respect of that withdrawal.”. (4) In regulation 18(1), for “Where” substitute “Subject to regulation 18A, where”.

(a) The functions conferred on the Secretary of State by the Personal Independence Payment (Transitional Provisions) Regulations 2013 (“the 2013 regulations”), as regards Scotland, transferred to the Scottish Ministers by virtue of section 53 of the Scotland Act 1998 (c.46) as amended by section 32 of the Scotland Act 2016 (c.11). This includes the function of sending a notification under regulation 3(1). By virtue of section 117 of the Scotland Act 1998, as read with section 32 of the Scotland Act 2016, references in the 2013 regulations to the Secretary of State are to be read as references to the Scottish Ministers in so far as relating to functions that are exercisable within devolved competence.

2 SSC/S5/20/14/3

(5) After regulation 18, insert—

“Extension of certain fixed term period awards of disability living allowance for persons resident in Scotland reaching 16 18A.—(1) Where there is an award of disability living allowance to a DLA entitled person and— (a) the award is of— (i) both components and the award in respect of either or both is for a fixed term period, or (ii) one component only and for a fixed term period, (b) the person reaches the age of 16 on or after 1 September 2020, (c) the fixed term period will expire in the period starting with the day before the person reaches the age of 16 and ending with the day before the person reaches the age of 18, and (d) the person is resident in Scotland, the fixed term period shall be extended. (2) A fixed term period extended under paragraph (1) shall expire on the day before the person reaches 18 years and 6 months, or where these Regulations have the effect that the person’s entitlement to disability living allowance terminates on an earlier day, on that day.”.

SHIRLEY-ANNE SOMERVILLE A member of the Scottish Government St Andrew’s House, Edinburgh At 9.30 a.m. on 17th July 2020

3 SSC/S5/20/14/3

EXPLANATORY NOTE (This note is not part of the Regulations) These Regulations amend the Personal Independence Payment (Transitional Provisions) Regulations 2013 (S.I. 2013/387) (“the 2013 Regulations”). In particular, provision is made to insert a new regulation 18A. This makes provision for DLA entitled persons who are in receipt of a fixed term award, reach the age of 16 on or after 1 September 2020, and are resident in Scotland. Where the fixed term period will expire within the period starting with the day before the person reaches the age of 16 and ending with the day before the person reaches the age of 18, the fixed term period is extended and shall instead expire on the day before the person reaches 18 years and 6 months, or where the 2013 Regulations have the effect that the person’s entitlement to disability living allowance terminates on an earlier day, on that day. This extension applies whether the person was resident in Scotland at the time they turned 16 or becomes resident in Scotland after this time. These Regulations also insert a new paragraph (3ZA) into regulation 3 of the 2013 Regulations. This provides that Scottish Ministers must not send a notification inviting persons entitled to Disability Living Allowance (DLA) and resident in Scotland to apply for Personal Independence Payment (PIP) until they reach the age of 18, after which point the Scottish Ministers must send them a notification inviting them to make a claim for PIP as soon as reasonably practicable. This applies whether or not the person was resident in Scotland at the time they turned 16 or becomes resident in Scotland after this time. These Regulations insert regulation 4A into the 2013 Regulations, which makes provision for persons entitled to DLA, who have reached the age of 16 on or after 1 September 2020 whilst resident in England and Wales, and have been sent a notification inviting them to claim PIP whilst still resident in England and Wales, before then becoming resident in Scotland in advance of any assessment determination being made. Firstly, regulation 4A provides that from the date on which the person becomes resident in Scotland, the notification they received ceases to have effect, and regulations 8-11 of the 2013 Regulations are of no effect in relation to that notification. Provision is also made to ensure that, like others resident in Scotland, they will receive a new notification inviting them to claim PIP once they reach they age of 18. They are also to be treated, for the purpose of regulation 4 of the 2013 Regulations, as though they have never received any notification inviting them to transfer to PIP. As a result, they may elect to make a voluntary application for PIP in terms of regulation 4. Provision is also made within regulation 4A for situations where a person who becomes resident in Scotland has already made claim for PIP following notification. Any such claim will continue towards an assessment determination in terms of regulation 4 of the Social Security (Personal Independence Payment) Regulations 2013 (S.I. 2013/377), unless the person chooses to withdraw their claim under section 31 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations (S.I. 2013/380) (“the Claims and Payments Regulations”). If the person does choose to withdraw their claim under section 31 of the Claims and Payments Regulations, then regulation 15 of the 2013 Regulations will not have effect in relation to that withdrawal. As a result, they will continue to be able to receive any payments for DLA to which they are entitled. A Business and Regulatory Impact Assessment has been prepared and placed in the Scottish Parliament Information Centre. Copies may be obtained from the Scottish Government, Directorate for Social Security, Victoria Quay, Edinburgh and online at www.legislation.gov.uk.

4 SSC/S5/20/14/3

POLICY NOTE

THE PERSONAL INDEPENDENCE PAYMENT (TRANSITIONAL PROVISIONS) AMENDMENT (SCOTLAND) REGULATIONS 2020

SSI 2020/218

The above instrument was made in exercise of the powers conferred by sections 93 and 94 and schedule 10 of the Welfare Reform Act 2012. The instrument is subject to negative procedure.

Purpose of the instrument. These Regulations will ensure that young people resident in Scotland who are entitled to DLAC immediately prior to their sixteenth birthday, and whose sixteenth birthday falls on or after 1 September 2020, will not be required to claim Personal Independence Payment (PIP) at age 16 as is currently the case, but at age 18.

These Regulations also provide for persons entitled to DLA, who have reached the age of 16 on or after 1 September 2020 in England and Wales and then become resident in Scotland, to also remain in receipt of DLA until they are 18, at which point they will then receive a notification inviting them to claim PIP.

Policy Objectives

The Social Security (Scotland) Act 20181 (“the 2018 Act”) sets out the broad legal framework for the delivery of devolved social security benefits in Scotland. In terms of the Scotland Act 2016 (Transitional) Regulations 20172, as of 1 April 2020, the Scottish Ministers now have executive competence for disability benefits under the Social Security Contributions and Benefits Act 1992, and the Welfare Reform Act 2012, covering Disability Living Allowance for Children (DLAC), Attendance Allowance and Personal Independence Payment.

These benefits will continue to be delivered in Scotland during a transition period by the Department for Work and Pensions (DWP) under the terms of an Agency Agreement agreed with the Scottish Government, and subject to the direction of Scottish Ministers, to ensure the safe and secure devolution of disability benefits.

As part of the devolution of disability benefits, the Personal Independence Payment (Transitional Provisions) Amendment (Scotland) Regulations 2020 detail the changes being made by the Scottish Government to the eligibility criteria for Personal Independence Payment, found in the Personal Independence Payment (Transitional Provisions) Regulations 2013 (“the 2013 Regulations”)3.

Changes in respect of DLA entitled young people resident in Scotland

1 http://www.legislation.gov.uk/asp/2018/9/contents 2 http://www.legislation.gov.uk/uksi/2017/444/contents/made 3 http://www.legislation.gov.uk/uksi/2013/387/made SSC/S5/20/14/3

These Regulations will ensure that young people resident in Scotland who are entitled to DLAC immediately prior to their sixteenth birthday, and whose sixteenth birthday falls on or after 1 September 2020, will not be required to claim Personal Independence Payment (PIP) at age 16 as is currently the case. Instead, they will not be invited to claim PIP until shortly after they turn 18, and their award of DLAC will be extended until they reach age 18 years and 6 months. This will allow time to receive the invitation and subsequently claim PIP.

Changes in respect of DLA entitled young people who relocate to Scotland from elsewhere in the United Kingdom

These Regulations also make changes for young people resident in England and Wales who are entitled to DLAC immediately prior to their sixteenth birthday, and whose sixteenth birthday falls on or after 1 September 2020, but who subsequently move to Scotland. These regulations provide that where a person within this group has already been sent an invitation to claim PIP, from the date they become resident in Scotland, that invitation ceases to have effect and is treated as though it has not been made.

The practical effect is that a young person in these circumstances may, along with those already resident in Scotland, remain in receipt of DLAC until they are 18, at which point they will then receive a notification inviting them to claim PIP. They may then also continue to receive DLAC until they reach the age of 18 years and 6 months, to afford time for them to claim PIP.

These Regulations also provide, however, that where a person within this group has already made a claim following receipt of the invitation, that claim will continue until a determination is made on it under regulation 4 of the Social Security (Personal Independence Payment) Regulations 20134.

Having made a claim for PIP, though, the young person may still choose to withdraw their claim under regulation 31 of the Universal Credit, Personal Independence Payment, Jobseeker's Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013. These regulations have the effect that, if they choose to do this, they will remain entitled to DLAC until reaching 18 years and 6 months, and are treated as though they have never made the claim.

Key Policy Divergence from DLAC

The Welfare Reform Act 2012 introduced significant changes to disability benefits in Great Britain, by abolishing Disability Living Allowances for people aged 16 and over.

When a young person is entitled to DLAC immediately prior to their sixteenth birthday, currently in terms of regulation 3 of the 2013 Regulations, they will be issued with an invitation to claim PIP shortly after reaching age 16.

There is also provision in regulation 18 of the 2013 Regulations allowing for certain fixed term period awards to be extended until a person reaches the age of 17.

4 http://www.legislation.gov.uk/uksi/2013/377/made SSC/S5/20/14/3

Following the transfer of executive competence for disability benefits (including PIP, DLAC and Attendance Allowance) from the UK to the Scottish Government on 1 April 2020, the Scottish Government announced its intention5 that young people who resident in Scotland and are already entitled to DLAC immediately prior to their sixteenth birthday will not be invited to claim PIP until they reach the age of 18.

These regulations make that change for young people who turn 16 on or after 1 September 2020, by adding to regulation 3.

The regulations also make alternative provision to regulation 18 for Scotland, for the extension of certain fixed term period awards of DLAC to persons resident in Scotland until the person reaches the age of 18 years and 6 months. This is the maximum extension allowed.

For young people who reach age 16 in England and Wales, who have received a notification to claim PIP, and subsequently move to Scotland, additional provision is made in respect of extending their award of DLAC to the age of 18 years and 6 months.

The existing provisions of the 2013 Regulations apply to these extensions, however, and so an award to DLAC may still terminate earlier in terms of those regulations. In particular, in terms of regulations 7-11, if a claim for PIP is not made within 28 days of the invitation, then entitlement to DLAC will be suspended. The person will then have a further 28 days to make a claim. If following the expiry of this period there has still been no claim, then entitlement to DLAC is terminated.

Provision is also made within these regulations so that, if a person who moves to Scotland from England and Wales has already received a notification inviting them to claim PIP, that notification ceases to have effect and, for the purposes of the rest of the 2013 Regulations, it is treated in effect as though it were never made. Provision is also made though, for if such a person, having received an invitation, has already made a claim for PIP. It is provided that such a claim will continue until a determination is made, unless the individual elects to withdraw it. If the individual does decide to withdrawn their claim, provision is then made to ensure that they too will remain entitled to DLAC until they are 18 years and 6 months (unless the award terminates earlier).

Consultation During the Consultation on Disability Assistance6 many respondents expressed the view that asking a young person to transfer from DLAC to PIP at age 16 was a stressful experience, with face-to-face assessments being highlighted as a significant issue for many young people.

The change made by these regulations will provide continuity and reassurance at a time when young people will be transitioning between childhood and adulthood, as well as moving between health and social care services. This will also help families and carers of young people during what can be a key time in a young person’s life.

Young people aged 16 and 17 who are not already entitled to DLAC will not be able to claim DLAC, but will instead be required to claim PIP. This approach has been selected to avoid a

5 https://www.gov.scot/news/16-year-olds-will-no-longer-need-to-apply-for-pip-in-scotland/ 6 http://consult.gov.scot/social-security/improving-disability-assistance/ SSC/S5/20/14/3 young person having to claim DLAC, receive it for a short period and then be required to claim PIP shortly thereafter.

Policy Summary

The policy summary for the provisions within the regulations are as follows:

Regulation 2(1) sets out that the Regulation provisions modify the Personal Independence Payment (Transitional Provisions) Regulations 2013 (S.I. 2013/387).

Invitations to persons entitled to disability living allowance to claim personal independence payment

Regulation 2(2) modifies regulation 3 of the existing Regulations, by inserting paragraph (3ZA). This provides that the Scottish Ministers must not issue an invitation to claim PIP to a person entitled to DLAC who is resident in Scotland until that person reaches the age of 18.

Paragraph (3ZA) also details that upon that person reaching age 18, the Scottish Ministers must as soon as reasonably practicable issue an invitation for them to claim PIP.

Claims by persons entitled to disability living allowance for personal independence payment upon becoming resident in Scotland

Regulation 2(3) inserts Regulation 4A. Regulation 4A(1) provides that this regulation makes provision in respect of DLA entitled persons who reach the age of 16 on or after 1 September 2020, who have been sent a notification under regulation 3(1) whilst resident in England and Wales, and subsequently become resident in Scotland before an assessment determination is made.

Regulation 4A(2) provides that from the date on which the person becomes resident in Scotland:

• the notification sent to the them under regulation 3(1) ceases to have effect; • regulations 8 to 11 are of no effect in respect of that notification; • regulation 3(3ZA) and 18A will apply in respect of the person; and • for the purposes of regulation 4, the person will be treated as though they have not received a notification in terms of regulation 3(1).

By virtue of Regulation 4A(3), nothing in regulation 4A(2) affects the validity of a claim for PIP made following a notification under regulation 3(1), and the claim will continue towards an assessment determination.

Regulation 4A(4) provides that where a person in paragraph (3) withdraws their claim for PIP under regulation 31 of the Universal Credit, Personal Independence Payment, Jobseeker's Allowance and Employment and Support Allowance (Claims and Payments) Regulations (S.I. 2013/380) , before an assessment determination is made, then regulation 15 does not apply.

Extension of certain fixed term period awards of disability living allowance for persons reaching 16 SSC/S5/20/14/3

Regulation 2(4) modifies regulation 18(1) by referring the reader to the new provisions inserted at regulation 18A, which make alternative provision to that in regulation 18 for Scotland.

Regulation 2(5) inserts Regulation 18A. Regulation 18A(1) provides for the extension of a fixed term award of DLAC where:

• there is an award of one or both components of DLAC for a fixed period; • the person reaches age 16 on or after 1 September 2020; • the fixed term period expires after the person reaches the age of 16, but before they reach the age of 18; and • the person is resident in Scotland.

Reulation 18A(2) provides that a fixed term period extended under paragraph (1) is to expire when the person reaches 18 years and 6 months of age, or if the 2013 Regulations provide for the person’s entitlement to expire on an earlier date, on that date.

Impact Assessments The following impact assessments have been completed and are attached:

• A Child Rights and Wellbeing Impact Assessment • An Equalities Impact Assessment • A Business Regulatory Impact Assessment • An Islands Communities Impact Assessment • A Fairer Scotland Duty Assessment

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

July 2020