Draft Social Security (Up-rating) (Miscellaneous Amendments) (Scotland) Regulations 2021

Recommendation 1: In evaluating the delivery of CDP, the Scottish Government should assess whether the timescales to apply for re-determinations meet applicants’ needs. Social Security Scotland should gather and publish information on reasons and outcomes where re-determination requests are received outside the time limit.

Recommendation 2: The Scottish Government should amend the definition of ‘severe visual impairment’ in regulation 7(4) to remove the mobilising requirement. Further, it should provide detailed guidance on the VINCYP assessment and the types of supporting information that will evidence severe visual impairment.

Observation 1: Generally, where there is a significant change in policy as regulations are developed, it would be good practice to consider any consequential impacts and update equality and other impact assessments as needed. To ensure any potential impacts are identified regarding children with visual impairments, the Scottish Government should monitor how many children qualify for CDP under the new definition of severe visual impairment.

Recommendation 3: As part of its take-up strategy for CDP working with organisations and services, the Scottish Government should work with VINCYP networks to promote take-up among children with visual impairments.

Observation 2: We note that further adjustments to drafting of regulations are needed to ensure that the route to qualifying for higher rate mobility for a child with a ‘severe mental impairment’ who also has ‘severe behavioural difficulties’ is set out in regulations in a manner consistent with the policy intention of it being a single test where both parts must be satisfied.

Recommendation 4: The Scottish Government should amend the regulations to clarify the policy intention that interventions in a positive behavioural support plan are evidence but having such a plan is not required for a child to be accepted as having ‘severe behavioural difficulties’.

Recommendation 5: The Scottish Government should ensure that regulation 7(3) is explicit about which routes to qualifying for higher rate mobility are affected by a child’s ability to walk using an artificial limb or artificial aid.

Recommendation 6: The Scottish Government should ensure that the policy intention relating to a child’s ability to walk out of doors is clear in regulations and guidance.

Observation 3: We note that further adjustments to drafting of the regulation for lower rate mobility component may be needed to explicitly relate the need for guidance or supervision to a physical or mental impairment. Should the Scottish Government consider the draft regulations to be sufficient as they are, it should explain how they are consistent with the Social Security (Scotland) Act.

Recommendation 7: The Scottish Government should amend regulation 14 to allow a nil amount to be paid when entitlement begins while a child is resident in a care home or residential educational establishment.

Recommendation 8: The Scottish Government should clarify whether the policy intention is not to pay CDP care component arrears if a child or young person is released from legal detention without charge or sentenced to a non-custodial prison sentence.

Recommendation 9: The Scottish Government should:

• clarify in the regulations the circumstances in which an advance application can be made, with a view to a broad flexibility;
• clarify in the regulations that the qualifying period for the lower rate mobility component can be served before a child’s 5^th birthday;
• attend to the technical issues noted in relation to start dates for entitlement.

Recommendation 10: The Scottish Government should amend the regulations so that the general rule is that a child has a right to receive their correct entitlement fully backdated when an official error has caused an underpayment.

Recommendation 11: The Scottish Government should:

• ensure that the policy intention on flexible payment methods for young people is fully realised in the regulations;
• ensure that regulation 30(6) achieves the policy intention of paying the equivalent of 8 more weeks CDP if a child dies.

Recommendation 12: The Scottish Government should consider how to amend the past presence test for CDP to ensure that it complies with human rights legislation.Observation 4: We would welcome further information on how the Scottish Government plans to ensure that young people do not experience a gap in payments as they transition from CDP to an adult disability benefit.