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

The report concludes with some points about the process by which the draft Regulations have been put together and referred to the Commission for scrutiny. Members have become accustomed to working to tight reporting deadlines and the deadline for these Regulations was the tightest to date. The Scottish Government has explained that this was due to a combination of the delay to its legislative timetable caused by the COVID-19 pandemic and the need to have these Regulations in place before the end of the transitional period for leaving the EU.  In this case, the limited time available, while far from ideal, did not make the task impossible as the focus of scrutiny was narrower than usual. The Scottish Government has stated that any significant delay to the making of the Regulations would have required primary legislation, a more time-consuming process that would have been in the interests of neither EEA residents with an entitlement nor Social Security Scotland.

We note that the Scottish Government has not involved service users in the development of these draft Regulations, due to the small size of the potential client base (and, presumably, the difficulty involved in identifying its members).  While social security principle (f) says that the Scottish social security system is to be designed with the people of Scotland, the difficulty in identifying the likely users as well as the technical nature and narrow scope of the Regulations mean not doing so in this case is both defensible and understandable. The Commission welcomes the brief update received on Social Security Scotland’s ongoing work to improve its knowledge of its service users, including their protected characteristics, and their experience of devolved social security including CAS and YCG.

The Commission asked whether it would have been possible or preferable to include the provisions that appear in these draft Regulations in the original legislation establishing the two forms of assistance. Doing so may have saved time and resources, and avoided the need, for example, to establish provisions on retrospective claims.  In response to questions from the Commission, Scottish Government officials explained that it was considered necessary to await a view from the Administrative Commission on the applicability of the coordination rules before legislating.

The Commission considers this approach to be appropriate in the case of YCG. In the absence of any analogous UK benefit, it would have been impossible for the Scottish Government to be certain about the necessity of the provisions under scrutiny when the Carer’s Assistance (Young Carer Grants) (Scotland) Regulations 2019 were drafted – although the Scottish Government has acknowledged it always considered the YCG “likely” to be deemed exportable.  CAS differs in that it is a top-up payment to a UK benefit that was already known to fall within the scope of the coordination rules. Consequently, the reason for doubting whether the coordination rules would apply is less clear. Communication from the Scottish Government confirms that s81(8) was included in the Social Security (Scotland) Act 2018 precisely because it was anticipated that CAS might be exportable.  There might therefore have been an opportunity to make the necessary provisions in the original 2019 Regulations, avoiding the need to reopen the issue at a later date. It is reassuring that provision has been made to backdate payments to the introduction of CAS or the date at which the individual’s entitlement should have begun, so that people should not lose money.  However, it would have been better if people in receipt of Carer’s Allowance and with a genuine and sufficient link to Scotland had been able to avail of their entitlement from the point at which CAS was introduced or (if later) their Carer’s Allowance claim began, and would have avoided the need for Social Security Scotland to administer back payments.

While there will sometimes be doubt as to the applicability of the coordination rules to a new social security payment, the Scottish Government has told the Commission which forms of social security assistance it anticipates will be classified as ‘social security’ for the purposes of the coordination rules, and which it does not.  It follows that  where there can be little doubt over its applicability, it may not be necessary to await an opinion from the Administrative Commission before making the necessary provisions for exportability and for extending entitlement to resident EEA nationals.

Recommendation 10: The Scottish Government should outline its view on whether it is always necessary to await an opinion from the Administrative Commission on whether a new social security benefit falls within the scope of the coordination rules before applying them. The Scottish Government may create future top-up payments to reserved benefits within the scope of the coordination rules, or create new forms of assistance directly analogous to reserved benefits within their scope. If feasible, it should include the necessary provisions for compliance in its draft Regulations rather than await an opinion from the Administrative Commission.