The Winter Heating Assistance (Pension Age) (Scotland) Regulations 2024: scrutiny report

1.1 Overview

The Scottish Commission on Social Security (SCoSS) is pleased to present its report on the draft Winter Heating Assistance (Pension Age) (Scotland) Regulations 2024 (referred to in this report as the ‘draft Regulations’).

Currently most older people over State Pension age in the UK are entitled to a Winter Fuel Payment (WFP) from the UK Government.¹Winter Fuel Payment: Eligibility (www.gov.uk) Paid to more than a million people in Scotland at a total cost of around £180m for winter 2024/25,²Rising to £188m by winter 2028/29; draft Business and Regulatory Impact Assessment, p. 6. WFPs were introduced in 1997 as a one-off payment each winter to help with fuel costs, in addition to any payments from the cold weather scheme. Older people were targeted due to their vulnerability to the cold and the greater likelihood of being on fixed incomes.³Section 3.2, Pensioner benefits briefing paper CBP-06354, 14 January 2020 (www.parliament.uk). Payments are largely automatic for a qualifying person, being based on the Department for Work and Pensions’ (DWP) records rather than an application.

The Scottish Government provides two other social security payments related to winter heating costs, the Child Winter Heating Payment⁴The Winter Heating Assistance for Children and Young People (Scotland) Regulations 2020 (legislation.gov.uk) and the Winter Heating Payment. ⁵The Winter Heating Assistance (Low Income) (Scotland) Regulations 2023 (legislation.gov.uk)The Winter Heating Assistance (Low Income) (Scotland) Regulations 2023 (legislation.gov.uk) The Child Winter Heating Payment is a payment made once per year in order to help disabled children and young people and their families with increased heating costs over winter. The payment is usually automatic where the child or young person is entitled to the highest rate of disability benefits.⁶Such as the highest rate care component of Child Disability Payment or the enhanced daily living rate of Adult Disability Payment. The payment for winter 2024 to 2025 is £251.50.⁷Child Winter Heating Payment (www.mygov.scot) The Winter Heating Payment is a payment made once per year in order to help people on means-tested benefits who might have extra heating needs. This payment is also usually automatic for those who have been awarded a means-tested benefit and meet the other criteria;⁸Such as Universal Credit, you are responsible for a child under 5 and you are not in employment, or you have limited capability for work or your award includes a disabled child addition. the payment for winter 2024 to 2025 is £58.75.⁹Winter Heating Payment (www.mygov.scot)

As part of the continuing process of devolving some benefits to the Scottish social security system, the draft Regulations will introduce a Pension Age Winter Heating Payment (PAWHP) to Scotland, replacing WFP. PAWHP will, initially, be a like-for-like benefit with the same eligibility criteria and payment amounts as WFP. The Scottish Government has acknowledged, however, “that further development work will be required as we continue to explore the potential longer-term development of Pension Age Winter Heating Payment.”¹⁰Referral – Winter Heating Assistance (Pension Age) (Scotland) Regulations 2024 – Scottish Commission on Social Security (socialsecuritycommission.scot) We discuss possible future changes to PAWHP in section 6 of this report.

Initially, PAWHP aims to address some of the impact of additional domestic heating costs in winter. The Scottish Government aims for PAWHP to provide “universal and reliable financial support to people of pension age who are more vulnerable to cold temperatures due to their age and therefore have a greater need for household heating”.¹¹Policy Note (socialsecuritycommission.scot)

The Scottish Government refers to the policy rationale as to “mitigate some of the impact of additional domestic heating costs” and also to provide all older people with “additional money to meet increasing heating costs during the winter”.¹²Pages 2 and 3 respectively of the draft Equality Impact Assessment.

In this report we identify key regulations and areas for consideration.

1.2 Human rights and principles

As required by the Act, our scrutiny was undertaken with regard to the Scottish social security principles¹³Social Security (Scotland) Act 2018 (legislation.gov.uk) and relevant provisions of human rights law.

1.2.1 Human rights

As a payment aimed at older people, the human rights instrument most relevant is the United Nations Principles for Older Persons (UNPOP).¹⁴This statement of principles is not a legally binding set of rights (as would be the case for a human rights convention or covenant), but many of the principles broadly reflect rights protected by various conventions. This refers to principles of independence, participation, care, self-fulfilment and dignity.¹⁵United Nations – OCHR and older persons PAWHP should contribute to these UNPOP principles in making a contribution to meeting the additional fuel costs, and continuing existing entitlement for individuals.

In themselves, the draft regulations introducing PAWHP make little or no additional contribution towards fulfilment of these rights compared to WFP, as the conditions and rates of award broadly mirror the existing WFP rules. As a like-for-like replacement benefit, the introduction of PAWHP is unlikely to change people’s rights in Scotland in the short term. In common with the launch of previous Scottish benefits, there are likely to be sound administrative reasons for this approach.

As we have stated in previous reports, good operational delivery that gives people confidence in the continuity of their payments and can effectively administer new claims is critical. Changing the rules too much before the transfer is completed could risk undermining delivery with detrimental consequences.

However, the principle of ‘progressive realisation’ of rights¹⁶And ‘non-regression’ of rights: see Progressive Realisation and Non-regression (www.escr-net.org). These are contained in the International Covenant on Economic Social and Cultural Rights: Frequently Asked Questions on Economic, Social and Cultural Rights (www.ohchr.org). will be relevant to considerations of proposals for the longer-term development of PAWHP. The Scottish Government will need to consider how future iterations of PAWHP and changes to the benefit over time interact with human rights and social security principles. These issues are considered further in section 6.

1.2.2 Social Security principles

The Scottish social security principles are listed in Annexe A. The principles are embedded in Our Charter which sets out what people can expect from the social security system.¹⁷Our charter (www.socialsecurity.gov.scot) When viewed through the lens of the social security principles, PAWHP can represent an investment in the people of Scotland (principle (a)), especially as take-up is high (96%), and it represents a financial investment of £180m for about one million people.¹⁸As expected in 2024/25, rising to £188m by winter 2028/29; draft Business and Regulatory Impact Assessment, p. 6. Automatic payments may also support principle (d) (respect for the dignity of individuals is to be at the heart of the Scottish social security system).

In common with our observations above on human rights obligations, the additional contribution to the fulfilment of these principles compared to WFP will be limited. The level of investment in the people of Scotland and contribution to poverty reduction will likely be similar to WFP (although there may be some scope for improving take-up). If most people receive an automatic award, differences in operational practice between the DWP and Social Security Scotland should only be experienced by a minority who have to apply for PAWHP, or who request a redetermination.

The initial like-for-like transfer from WFP to PAWHP can also be seen as enabling the Scottish Government to fulfil the efficiency and value for money principle (principle (h)). Efficiency can be gained by ensuring a quick move which does not require expensive or detailed changes, though this like-for-like approach limits the scope to make improvements (principle (g)) from the start of its delivery.

From the consultation undertaken by the Scottish Government, with over 900 organisations and individuals responding to questions about PAWHP in the short and longer term, it appears that principle (f) that the Scottish social security system is to be designed with the people of Scotland on the basis of evidence, has been central to the initial thinking. The principles are considered further in section 6.