- 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
6. Application and determination
The draft Regulations empower the Scottish Government to make a determination of an EEA resident’s entitlement to CAS with or without application. In practice it does not seem very likely that many initial determinations will be made without application, at least in the first round of applications. What was not initially clear to the Commission from either the draft Regulations or the accompanying policy note was whether a fresh determination would be required in respect of each 26- week period for which a CAS payment is made, or whether there would effectively be a single, ongoing award with payments made on a twice-yearly basis. The Scottish Government has now advised that a fresh determination will be made for each 26-week period. It seems much more likely that at least some of these repeat awards will be made without application. It was not necessary to clarify this issue when CAS was introduced due to the automatic nature of payments to Scotland-resident recipients, but clarity is more important now that entitlement is to extend to qualifying residents of the EEA and Switzerland. The provision allowing determinations without application will also enable Social Security Scotland to rectify an initial, incorrect determination without requiring a further application.
Recommendation 5: The Scottish Government should consider whether it is necessary to amend the draft Regulations to clarify that each payment of CAS represents a separate award, requiring a fresh determination, or whether guidance to this effect will suffice.
Making provision for retrospective applications for each form of assistance seems fair, and probably legally necessary, given that there will be individuals who ought to have had an entitlement to either CAS or YCG since the introduction of the payment, but did not because the legislation did not comply with the coordination rules.
One provision of concern here is Regulation 9(6)(f), which states that someone who has previously received a YCG is not entitled to make a retrospective application unless this covers a period of 13 weeks ending at least one year after the qualifying period for the previous application.
The effect of this subparagraph appears to be that applications for YCG must be made sequentially in the same order as the period covered by each claim – that is, a young carer who has been awarded YCG could not apply for a second grant in respect of an earlier missed payment period. If this is the case, it could result in a young carer missing out on a grant to which he or she would have been entitled had these provisions been in place from October 2019, when YCG was launched. For example, a 17-or 18-year old carer who applies for the YCG in December 2020 or January 2021 (shortly after these Regulations are due to take effect) might be barred from subsequently applying for a further YCG in respect of a qualifying period ending between October and December 2019, even if he or she met all the conditions in that period other than the then-applicable residence condition. If this was the policy intent, it seems to clash with the general intent of the Social Security Charter that processes and systems should be “as clear as possible.” If it was not the policy intent, then the Regulation should be amended to make clear that current and retrospective applications can be made in any order.
Recommendation 6: The Scottish Government should amend Regulation 9(6)(f) so that the order in which applications are made does not lead to individuals missing out on any retrospective payments to which they would otherwise have been entitled.