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

It is well established in the case law that a ‘genuine and sufficient link’ to the UK is an appropriate requirement for residents of the EEA or Switzerland seeking to claim a social security benefit on the basis of the coordination rules. Both terms have been the subject of EU case law, whereas the draft Regulations only define ‘sufficient’, but not ‘genuine’, by reference to EU law. Requiring the same kind of connection to Scotland makes good sense, both because the test has been tried and tested legally and because in demonstrating the necessary connection to Scotland the applicant in the process demonstrates the necessary connection to the UK.

In its policy note, the Scottish Government notes that the genuine and sufficient link test necessarily incorporates a measure of flexibility, so that it is not possible to include a precise definition in the Regulations. While this is indisputable from a legal point of view, it is also the case that prospective applicants and the advice sector require as much certainty as possible about the sort of circumstances that are likely to fall within or outside the requirements of the test, while decision makers need help to ensure application of the test to similar cases is as consistent as possible. Decision maker guidance for UK benefits outlines some factors that decision makers may take into account, but it would be useful if guidance in the Scottish system could be clearer, for example, by giving real-life examples of circumstances that have been found to establish or fall short of a genuine and sufficient link.

In response to the Commission’s brief consultation, Dr Charles O’Sullivan suggested that, in compiling such guidance, the Scottish Government should look to examples of best practice from EU member states as well as taking its own overview of relevant case law. Training sessions should ensure the guidance is fully understood, but also that decision makers understand the guidance is only indicative.

Recommendation 2: The Regulations should define both ‘genuine’ and ‘sufficient’ with reference to EU law in order to ensure the policy intention of ensuring compliance with EU law is achieved.

Recommendation 3: The Scottish Government should publish the clearest possible guidance on circumstances that are likely to pass the ‘genuine and sufficient link’ test and update this as significant developments in the case law occur, while being clear that it can never provide an exhaustive list of examples.