Amendment prompted by tribunal judgment
The draft Regulations amending the SCP and BSG Regulations are being made as a result of a first-tier tribunal judgment in a case involving competing claims for SCP. A further seven appeals concerning competing claims for SCP and one concerning competing claims for BSG have since been identified. Scottish Government officials provided SCoSS with some information on the appeals and subsequently with the text of the tribunal judgment. Having the opportunity to read in full the comments from the tribunal that prompted the proposed amendments to the two sets of Regulations was key to our ability to scrutinise the adequacy of that response.
The various cases before the tribunal concern situations in which the Regulations could provide no means of distinguishing between the competing claims other than making the award to the individual who was due the first determination of entitlement. In at least some of these cases the root of the problem was that awards of child tax credit or universal credit had been made to two individuals in respect of the same child. Receipt of child tax credit, universal credit or pension credit in respect of the child is the top-ranking consideration when multiple claims exist and the Regulations provide for no other means of differentiating the two claims. From a strictly legal point of view, the tribunal found in favour of the Scottish Government – applying the Regulations, making the award to the person who was due the first determination was the correct decision. However, the tribunal criticised this approach, stating that the Regulations had been drafted in such a way as to ‘deprive the rightful recipient of this assistance because of a technicality in the legislation’. That is, the wording of the Regulations was not in keeping with the policy intent of targeting support at individuals who receive a low-income
benefit and are the primary carer for a child.
The Scottish Government’s response has been two-fold. First, since it is not generally legally possible for two individuals to hold awards of child tax credit, universal credit or pension credit, in respect of the same child, it asked the Department for Work and Pensions (DWP)to review the competing claims and determine who ought to receive the passporting award. This brought a resolution in three cases. In three other cases, when one individual received universal credit while the other received child tax credit, the dispute is ongoing; a further two cases were still being considered by DWP at the time the draft Regulations were referred to SCoSS for scrutiny. Further, DWP only agreed to undertake such checks at the Scottish Government’s request until the end of 2021. Consequently, the decision was taken to amend both the BSG and SCP Regulations to enable Social Security Scotland to deal with competing claims in a way that better matches the policy intent, namely that the SCP or BSG award should go to the person with primary responsibility for care of the child.
Observation 1: When scrutinising draft Regulations that are proposed in light of a specific tribunal or court judgment, SCoSS needs to see the text of the judgment at the earliest opportunity in order to take a clear view of whether the draft Regulations represent a satisfactory response.