Carer's Allowance Supplement (Qualifying Persons) and Young Carer Grant Amendment (Scotland) Regulations 2020: scrutiny report

The Scottish Commission on Social Security (SCoSS) is pleased to present its report on the draft Carer’s Allowance Supplement (Qualifying Individuals) and Young Carer Grant Amendment (Scotland) Regulations (‘the draft Regulations’). This report has been completed in accordance with our pre-legislative scrutiny function, as set out in sections 22 and 97 of the Social Security (Scotland) Act 2018.

These draft Regulations are technical in nature. Their primary purpose is to ensure that two forms of social security assistance created under previous legislation comply with the European Union’s (EU) social security coordination rules. These are set out in two European Council (EC) Regulations, which will be collectively referred to in this report as ‘the coordination rules’.

As we note below, the timescale for SCoSS to produce this report was very tight. The draft Regulations were referred by the Cabinet Secretary on 31st August 2020, with a requested response date of 18th September for our scrutiny report (in the event, this was extended to 25th September). The Commission received a briefing from Scottish Government officials at its July board meeting and also received responses to its subsequent written questions. Given the short deadline, the Commission invited written views from a limited number of individuals with known expertise in the field. Written answers from the Scottish Government to SCoSS’s questions are reproduced in Annex A and our scrutiny timeline is summarised in Annex B. The Commission’s webpages provide a link to the draft Regulations that are the subject of this report, other relevant material produced by the Scottish Government and written submissions from stakeholders. We thank all those who contributed to our scrutiny.

The report firstly considers the necessity of the draft Regulations in light of the UK’s withdrawal from the EU and then summarises the effect of the draft Regulations. Subsequent sections go on to consider whether the draft Regulations achieve their purpose of securing compliance with the coordination rules, before considering issues around redeterminations and appeals and take-up. The report concludes with comments about the process by which the draft Regulations have been brought forward, including the omission of coordination provisions from the legislation that initially created Carer’s Allowance Supplement (CAS) and Young Carer Grant (YCG), and the opportunity allowed for pre-legislative scrutiny.

Overall, the draft Regulations referred to the Commission appear likely to achieve their primary purpose of ensuring that CAS and YCG comply with the UK’s obligations under the coordination rules. The number of people who will become entitled to payments is currently unknown, meaning the cost to the Scottish budget is also unknown, but will clearly be small – the Scottish Government estimates between 20 and 120 additional people will become entitled to CAS as a result, and a similar number for YCG.

There are likely to be considerable challenges around identifying individuals with a possible entitlement (particularly to YCG) for the purposes of promoting take-up, as Scottish Ministers have a duty to do.