Referral of draft regulations from the Cabinet Secretary for Social Justice

Ed Pybus
Chair
Scottish Commission on Social Security
Victoria Quay
Edinburgh
EH6 6QQ

By Email: info@socialsecuritycommission.scot

3 January 2025

Dear Ed

Social Security (Cross-border Provision, Case Transfer and Miscellaneous  Amendment) (Scotland) Regulations 2025

I am writing to provide SCoSS with a draft of the Social Security (Cross-border Provision, Case Transfer and Miscellaneous Amendment) (Scotland) Regulations 2025 (‘the draft Regulations’), made under section 13 of the Social Security Act 1988, section 175(4) of the Social Security Contributions and Benefits Act 1992 and sections 28(2), 31(2), 32(2), 52, 81(8) and 95 of the Social Security (Scotland) Act 2018.

I enclose a draft set of regulations, and I request that the Commission prepare and submit a report to the Scottish Ministers in accordance with their function under section 22(1)(a), 22(1)(b) and 97(4) of the Social Security (Scotland) Act 2018.

These draft regulations make changes to the regulations for Child Disability Payment, Adult Disability Payment, Pension Age Disability Payment and Carer Support Payment so that people moving from the rest of the UK to Scotland who have been in receipt of a corresponding DWP benefit will need to make a new application to Social Security Scotland.

These draft regulations therefore remove the current provision of ‘determination without application’ for cross-border movers but provide that people who apply within a certain period will ultimately have no gap in entitlement between the two benefits.

Additionally, these regulations will allow access to support through Scottish Carer Supplement and Carer Additional Person Payment for carers moving to Scotland from the rest of the UK and receiving a 13 week run on of Carer’s Allowance.

The draft regulations also include provisions to amend the Scottish Adult Disability Living Allowance regulations, using a similar process to that used for Scottish Adult DLA awards made after an interval, for cross-border moves. We have included draft provisions on Scottish Adult DLA for scrutiny in square brackets pending the outcome of discussions with DWP on this process. This is because new applications are not available in Scottish Adult DLA, therefore further detailed impacting is required on this client journey.

Similarly, we are finalising our position on revoking case transfer provisions for CDP, ADP, PADP, CSP and Scottish Adult DLA, as the automatic transfer process winds down.

Discussions are ongoing with the DWP on how to handle individuals who should already have had their award transferred but this has not happened. Pending those discussions, we have included in square brackets amendments to cover this potential situation such that it would require an application, much like the cross-border process.

We anticipate there will be a further, separate amendment included in this instrument which my officials are currently working through the detail of. We will be working to send updated drafting to you on this early in the new year. I am grateful that your officials have provided an initial indication that SCoSS will be able to provide scrutiny of the updated instrument.

The regulations also include amendments to the CSP regulations to allow for applications for the benefit to be made up to 13 weeks in advance of entitlement. This change will support the new cross-border process by ensuring clients can apply for CSP while still in receipt of Carer’s Allowance, additionally allowing access to support through Scottish Carer Supplement and Carer Additional Person Payment for carers moving to Scotland from the rest of the UK and receiving a 13-week run on of Carer’s Allowance.

Finally, we are also taking this opportunity to make some minor changes to residence and presence conditions for Best Start Grant and Best Start Foods regulations, updating references to international agreements, and removing now redundant provisions relating to the initial period of applications for disability benefits within these regulations.

We plan for the regulations to come into force in September 2025. Changes to PADP and Scottish Adult DLA will come into force later if required to take account of the different end dates of case transfer.

Along with the draft regulations, I am also providing a draft policy note. The relevant impact assessments are still being drafted but we hope to share them in due course. These impact assessments may continue to be updated as we gather more data before the Regulations are formally laid before Parliament.

Finally, I want to extend my thanks to the Commission for considering these regulations. I look forward to receiving your report in due course.

Yours sincerely,

SHIRLEY-ANNE SOMERVILLE