- Document Cover
- Summary of recommendations and observations
- 1. Introduction
- 2. The coordination rules and withdrawal from the EU
- 3. Effect of the draft Regulations
- 4. Genuine and sufficient link to Scotland
- 5. Competent state
- 6. Application and determination
- 7. Redeterminations and appeals
- 8. Take-up
- 9. Process
- Annex A
- Annex B
3. Effect of the draft Regulations
In essence, the draft Regulations will serve to make both YCG and CAS available on the same basis to residents of Scotland and to EEA residents who have a genuine and sufficient link to Scotland and for whom the UK is the competent state for the payment of sickness benefits (these terms will be discussed below). The main exception to this is that CAS is paid to Scotland-resident claimants of Carer’s Allowance without a determination being made by Social Security Scotland, whereas the draft Regulations require a determination (whether with or without application) in respect of EEA residents.
Part 2 of the draft Regulations extends eligibility for CAS to residents of the EEA or Switzerland who are in receipt of Carer’s Allowance and have a genuine and sufficient link to Scotland, and for whom the UK is the competent state for the payment of sickness benefits. It makes provision for determinations of eligibility (with or without application) for CAS and for subsequent redeterminations and appeals. This involves an amendment to s81 of the Social Security (Scotland) Act 2018. The Act empowers the Scottish Government to make Regulations amending this section, as long as the purpose of the amendment is to change the definition of a qualifying individual. Part 2 of the draft regulations also extends the application of provisions of the Act relating to aspects of the application process – including sections relating to determinations, the duty to inform applicants of any other possible entitlements to devolved social security assistance and provision for appointees to act on behalf of an entitled individual. Retrospective applications and determinations are permitted in respect of any period since the creation of CAS.
Part 3 extends eligibility for the YCG to young carers resident in the EEA or Switzerland as long as the young carer has a genuine and sufficient link to Scotland and the UK is the competent state for paying sickness benefits to the young carer. The young carer must also meet the standard qualifying conditions of age (16 to 18 years), type (promoting the physical, mental or emotional wellbeing of the cared-for person), duration (13 weeks) and intensity (16 hours per week) of caring commitments. The cared-for person or people must receive a qualifying UK disability benefit. Part 3 of the draft Regulations also allows retrospective applications and awards to cover qualifying periods of care between the commencement date of the YCG Regulations (21 October 2019) and the commencement date for these new provisions (projected to fall in December 2020).Part 3 also clarifies that retrospective applications are possible even if the cared-for person has lost eligibility for the qualifying disability benefit since the end of the 13-week period on which the application is based. An extended period for redetermination requests (42 days) will apply to retrospective applications from EEA residents compared to other YCG applications (31 days) and the period for redeterminations is also longer (56 days as opposed to 16 working days). In previous reports, the Commission has highlighted the desirability of consistency across different forms of social security assistance, where this is possible. There does not appear to be any good reason for the inconsistency with the original YCG Regulations in how the redetermination periods are expressed.
Recommendation 1: Periods allowed for determination requests and the making of redeterminations should be consistently expressed in either calendar or working days. The Scottish Government should aim to ensure consistency across all forms of devolved social security assistance unless there are good, explicit reasons for taking a different approach.