The Draft Regulations
In one sense the Scottish Government is having to respond to a problem that was not of its making. DWP and HM Revenue and Customs should not be paying two awards of the child element of universal credit or child tax credit in respect of the same child. SCoSS notes that Social Security Scotland continues to work with DWP to attempt to reach a resolution when such cases are identified. That said, the Scottish Government in drafting the SCP Regulations clearly recognised the possibility that there would be occasions when receipt of the passporting benefit would not sufficiently distinguish two competing applicants, since it provided a last-resort means of doing so. It is this backstop that is criticised in the tribunal judgment. Once a clash of claims arose, the only available means of resolving it was an arbitrary one based on which individual applied first rather than whose circumstances best matched the policy intent of the payment.
The draft Regulations seek to remedy this shortcoming by introducing a new criterion for prioritising competing claims for SCP, and by effectively replicating the same set of criteria (as amended) in the BSG Regulations. The new criterion, which will become paragraph 5(6) of the Schedule to the SCP Regulations, states that, when it is not possible to determine who should receive the award based on receipt of universal credit, child tax credit, pension credit or child benefit or of a kinship care arrangement, Social Security Scotland ‘must determine which of the individuals is entitled to the payment having regard to the circumstances of the child’. The Scottish Government has told SCoSS that ‘this test is likely to take into account the child’s care and living arrangements’, with a view to determining who is the primary carer. We presume that further details will be set out in guidance.
Recommendation 1: While recognising that an exhaustive list is likely to be impossible, SCoSS asks the Scottish Government to ensure that guidance on how the test envisaged by draft Regulation 6 will work in practice is as comprehensive as possible. Guidance should be clear that the objective is to ensure that the award goes to the person who, in the Scottish Ministers’ judgement, has main responsibility for the child.
The amendment will enable Social Security Scotland to distinguish between competing claims when the existing hierarchy is unable to do so. It does nothing to address scenarios when the existing hierarchy may itself give rise to awards to the person who does not currently have main responsibility for the child. For example, paragraph 5(4)(a) indicates that where someone receives universal credit child element, child tax credit or pension credit child addition in respect of a child, this award trumps all other considerations. This means that if a child is living with a kinship carer, who is in receipt of a qualifying low-income benefit, but someone else (for example a parent) continues to receive child tax credit or universal credit child element in respect of the child, the kinship carer would not be entitled to receive SCP. SCoSS notes that, following receipt of our draft recommendations, the Scottish Government plans to make a further amendment in relation to the identification of the individual with primary responsibility for the child.
Recommendation 2: The Scottish Government should consider a further amendment to allow Scottish Ministers to decide who should receive SCP or BSG in situations where the hierarchy in paragraph 5 of the schedule to the SCP Regulations (as amended by the draft Regulations) and part 3 of schedule 1 to the BSG Regulations (as inserted by the draft Regulations) might result in an award being made to an individual other than the person who currently has main responsibility for care of the child.
More extensive amendment of the BSG Regulations is required to achieve the same objective. The end result is the insertion (as paragraph 6 of schedule 1) of a set of criteria for differentiating multiple claims in respect of the same child. This is essentially a mirror image of the amended version of paragraph 5 of the Schedule to the SCP Regulations, except that sub-paragraph 5(5), which gives priority to the individual who is due the first determination when there is no other means of differentiation, has no equivalent. There is no clear reason for this. If omission from the BSG Regulations confirms that the provision is now redundant, there seems no good reason for its continued inclusion in the SCP Regulations. If it is deemed desirable to retain the provision as a final ‘backstop’ in the SCP Regulations, it is not clear why the same should not apply to the BSG Regulations. SCoSS has argued in previous reports for consistency across social security Regulations unless there is a reason why they should differ.
Recommendation 3: The Scottish Government should consider whether there is a case for deleting paragraph 5(5) from the Schedule to the SCP Regulations, or including an equivalent provision in Regulation 6 of the BSG Regulations, and explain its decision.
In conversation with Scottish Government officials, SCoSS asked whether consideration had been given to using receipt of child benefit as a means of determining who should receive the SCP or BSG award in situations where there are concurrent awards of the passporting low-income benefit. Officials explained that the transfer of a child benefit award from one individual to another can take time and may lag some way behind a change in care arrangements. Scottish Women’s Aid’s submission of views to the Scottish Government on the proposed amendment highlights that this process may be deliberately drawn out in cases of domestic abuse. Who receives child benefit might not, therefore, be a reliable guide to who is the primary carer, at least in the short term.
Further amendments to the BSG Regulations have the effect of widening the circumstances in which two grants may be awarded to different individuals in respect of the same child. At present, a second award may only be made if the child’s care arrangements change after someone else had applied for a grant or received a grant as a result of a determination without application. Following amendment, the BSG Regulations will no longer stipulate when the change of care arrangements must have occurred. The Scottish Government has told SCoSS that the change is necessary because some children’s care arrangements have been more fluid than the Regulations anticipated.