The Care Leaver Payment (Scotland) Regulations 2026: scrutiny report

4.1 Applications, determinations and appeals

The responsible local authority will deliver the payment and will be required to provide advice and assistance to the young person in connection with the payment. The regulations allow for the payment to be made automatically, and without an application process at the point that the young person is leaving care.

Observation 3: Automatic payments, removing the need for individuals to submit an application, are an effective way of ensuring those entitled to a care leaver payment receive it.

In discussion with Scottish Government officials they noted that the responsible authority is under a legal duty to ensure that eligible individuals receive the payment. There is provision for internal review if someone receives a determination that they are not entitled to a payment and considers this to be incorrect.

Regulation 7 allows an individual, if the local authority has determined that they should not receive a payment, to request a review of the determination. The request must be made to the responsible authority within a year of the determination and state the reasons why an individual considers that they are eligible for a care leaver payment. Regulation 8 stipulates that upon receiving such a request, the responsible authority must appoint an officer of the local authority who was not involved in the original determination to review the determination.

Stakeholders agreed that payments should be made automatically to those identified as entitled but noted that the lack of an application process could lead to issues, particularly if a payment is missed or a dispute arises. However, an independent review, barring a judicial review, is not currently built into the process. This is the case for some Social Security Scotland benefits where, even though the payment is made automatically, an application and redetermination process is available in case someone does not receive the payment to which they are, or believe they are, entitled.¹For example, Winter Heating Payment, Child Winter Heating Payment and Best Start Grants are all fully or partially automatically paid and have redetermination processes attached to them. In these cases the independent review function is fulfilled by the tribunal. Nor is it clear that the provision for internal review is sufficient to allow for the challenge of all perceived errors. A person who thinks they are a care leaver who ought to be entitled to a Care Leaver Payment but has received no communication at all on the subject, does not have a determination so under the regulations has no right to request an internal review. Such individuals require an opportunity to submit an application.

One of the central messages of The Promise was that “children and young people must be listened to and meaningfully involved in decision-making about their care”. This is in line with Article 12 of the UN Convention on the Rights of the Child (UNCRC). The exclusion of an application process and challenge rights for Care Leaver Payment would seem to fall short of this commitment.

We have concerns that the reliance on the provision of a judicial review to provide compliance with article 6 of the European Convention on Human Rights, which guarantees a fair hearing in the determination of one’s rights. This may be out of reach to many individuals particularly if there is no channel for applications. In order to fulfil these commitments, rights-based social security benefits should have an application and independent review process attached to them.

Recommendation 6: As Care Leaver Payment is established through social security legislation its determination and appeals process should be rights-based. As such, the process to establish eligibility should include an application process and independent review alongside automatic payments.

4.2 Appointees for disabled people who lack capacity

There may be circumstances where a young disabled person could lack capacity to manage the Care Leaver Payment. While many disabled people will have an appointee or guardian who manage benefits on their behalf, this could be challenging for a care leaver and create a risk of financial exploitation or mismanagement.

In discussion with stakeholders, Contact noted that where young people receive existing Scottish social security benefits “Social Security Scotland need to decide whether the young person has the capacity to manage their own disability benefit – if they don’t have capacity then an appointee must be identified. So, unless a carer leaver hasn’t claimed child disability payment/adult disability payment they should already have an appointee in place, well before any award of a Care Leaver payment.”

Whilst arrangements are in place in the Social Security (Scotland) Act 2018 for Scottish Ministers to “appoint a person (an “appointee”) to act on behalf of a child in connection with the determination of the child’s entitlement to assistance” these only apply to certain benefits as specified by the Act, and do not extend to Care Leaver Payment.

While young people in these circumstances will almost always have an appointee in place to manage Child Disability Payment on their behalf, there is no provision in the draft regulations for the appointee to continue to act for the young person in relation to their Care Leaver Payment. It is important that there is alignment between the social security system and local authorities to ensure processes work smoothly for disabled care leavers and their support needs are met.

Recommendation 7: The Care Leaver Payment regulations should make specific provision for appointees and the processes that local authorities use should be aligned with Social Security Scotland.