Rights, Principles and Charter Commitments
Although the tribunal judgment has revealed a shortcoming in the Regulations as made, the Scottish Government’s response appears to be in keeping with a number of its commitments under the social security principles, Our Charter and human rights law. Principle (b) recognises that social security is a human right and essential to the realisation of other rights. Some argue there is tension between a rights-based and discretion-based approach to social security. The SCP and BSG Regulations in their current form can be described as rights-based in as much as they provide a transparent means of prioritising competing applications that leaves no room for discretion on the part of the decision maker. However, the criterion used in the last resort to decide which application should succeed when others do not distinguish them is an arbitrary one. The change of approach envisaged by the draft Regulations does introduce a greater degree of discretion. However, if this discretion is appropriately exercised it can help the two forms of social security assistance deliver some of the objectives of human rights law and other principles. Decision makers can be supported to exercise discretion appropriately by ensuring that consideration of the Public Sector Equality Duty is embedded in the process.
Notably, principle (e) states that the Scottish social security system is to contribute to reducing poverty. The SCP has been specifically designed to reduce child poverty and it can be argued that the BSG is about reducing child material deprivation by providing a one-off income supplement at strategic points in the child’s life that are associated with particular costs. In each case the ultimate objective is to help children in households in receipt of low-income benefits enjoy a standard of living adequate for their development, in accordance with article 27, UN Convention on the Rights of the Child (UNCRC). These objectives will only be achieved if the additional income goes to the person who is in fact the primary carer for the child, and who has a low income. The draft Regulations will give Social Security Scotland greater flexibility to ensure this happens in complex cases. If this is achieved in practice, it will represent an improvement of the devolved social security system in a way that puts the needs of those who require assistance first, in accordance with principle (g). By responding to the problem that the various appeals have highlighted, the Scottish Government can credibly claim that it is treating the best interests of the affected children as a primary consideration, in accordance with article 3(1) UNCRC – albeit that (as noted above) there may still be instances when the rules result in an award being made to an individual other than the person who currently has main responsibility for the child.
Recommendation 4: The Scottish Government should monitor the impact of the draft Regulations to ensure that the additional discretion conferred upon Social Security Scotland is used appropriately to enhance the role of SCP and BSG in reducing child poverty/deprivation.
Relaxing the rules that define the circumstances in which two people can receive a BSG in respect of the same child will presumably lead to an increase in duplicate awards. It is possible to argue that making multiple payments in respect of the same child, when the default is only to make one award at each of the relevant milestones, is in tension with principle (g), which states that the social security system should be efficient and deliver value for money. Equally, it could be argued that where a child’s care arrangements are fluid, more than one person might have to make major purchases at these milestones and that the payment of more than one grant is therefore justified in pursuit of poverty reduction. Since the 2018 Act sets no hierarchy of principles, which should be prioritised in this instance can only be a political decision.