- 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
7. Redeterminations and appeals
Part 1 of the draft Regulations creates an apparent incongruity in that Scotland-resident claimants have no appeal rights in respect of CAS, whereas EEA-resident applicants do. The Scottish Government has explained that this is because CAS is paid automatically to Scotland-resident recipients of Carer’s Allowance, without any need for a determination, therefore there is no decision to appeal. A complaints process exists, which the Scottish Government states can be used to challenge any erroneous non-payment of CAS, and has resulted in the identification and remediation of “a few” erroneous non-payments. Presumably if any appeal were necessary, it would be against the DWP’s determination of a Carer’s Allowance application. The Commission is satisfied to note that when the current UK Carer’s Allowance and CAS are replaced by the new Scottish Carer’s Assistance this will be subject to the full suite of redetermination and appeal rights conferred by the 2018 Act. On balance, it would probably be disproportionate to make similar provision in respect of CAS at this point given that it is in effect an interim measure. However, as a matter of general principle the Commission would stress the preferability of a rights-based redetermination and appeal process to a complaints process that is likely to allow greater discretion around the redress available following an error. As the Child Poverty Action Group in Scotland (CPAG) pointed out in its submission to the Commission, clarity is needed on whether the complaints process is capable of rectifying incorrect decisions resulting from official error, the receipt of incorrect information from DWP or ambiguity as to residence in Scotland.
Observation 1: The Commission would welcome any further information on how the complaints process has been and could be used to rectify any errors in the payment of CAS and its ability to rectify any incorrect decisions not covered by the redetermination and appeal provisions in the draft Regulations. The effectiveness of the complaints process should be monitored while CAS remains in place.
Recommendation 7: Reliance on informal complaints procedures, rather than statutory redetermination and appeals processes, to rectify errors in devolved social security should be very exceptional and clearly justified. If the Scottish Government envisages further use of this model it should publish criteria for doing so.
CPAG’s submission also noted that there is no clear reason why the time limit for redetermination requests and the period in which Social Security Scotland is required to make a redetermination are longer in respect of EEA residents submitting retrospective applications for periods between October 2019 and December 2020 compared to YCG applications from Scotland-resident applicants in this period, or from any applicant after December 2020.
Recommendation 8: The Scottish Government should explain why redetermination periods for applications under new Regulation 4(7) of the YCG Regulations are longer than those for other applications.