- 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
Could the Scottish Government feasibly have anticipated that these draft regulations would have been classified by the relevant EU body as ‘social security’, and therefore be exportable, when drafting the original legislation?
Reaching a view on the classification of these forms of assistance was complicated by the fact that neither payment has a direct equivalent in the existing Department for Work and Pensions system, and detailed discussions were therefore required with the UK Government (UKG) and the relevant EU bodies.
In relation to Carer’s Allowance Supplement (CAS), it was known at the time the Social Security (Scotland) Bill was going through Parliament that CAS may be exportable in terms of the EU rules. It was for this reason that the provision was included in section 81(8) of the now Social Security (Scotland) Act 2018 to expand the definition of qualifying individual. It would not have been practicable to discuss with the relevant EU bodies, as the Bill was going through, what the classification of CAS may be, given the possibility that the CAS provision would be amended.
The Scottish Government’s view in drafting the Young Carer Grant (YCG) regulations was that this assistance was likely to be classified as exportable by relevant EU authorities, and as such there is already provision for some export of YCG, in regulation 8(3) of the YCG regulations as it currently stands. The Scottish Government’s view, further to subsequent discussions with UKG and the relevant EU bodies, is that this should now be extended to allow export by some claimants who do not fall within the current provision.
Is there any information additional to the Cabinet Secretary’s letter as to exactly why the scrutiny timetable is so tight?
The timetable for these regulations has been affected by the coronavirus impact on the legislative timetable and on the overall social security programme. We can no longer rely on section 2(2) of the European Communities Act 1972 after the end of the transitional period for EU exit. As this is what enables us to make by secondary legislation the full package of changes necessary to export CAS, we would then likely be forced to rely on primary legislation. This would significantly delay the process of enabling people from outside the UK to claim CAS. In any event, we are keen to have the changes in place to enable payments of CAS to be made to people outside the UK in line with the December payment run in Scotland.
While appreciating that it may be very difficult to do so, has the Scottish Government estimated the potential costs of extending the assistance, including for applications being backdated?
Given the very low numbers eligible to receive both CAS and YCG outside of the UK, the additional expenditure on payments, including those for backdated applications, is not expected to be material. Delivery processes are in development but will use existing systems and resources so delivery costs are also expected to be minimal.
Given the low number of people who may claim the assistance, and that they may scattered throughout the EEA, is there any more info about the Scottish Government ‘communications plan and an application process […] to ensure all eligible carers can access this support?’ The SG has said, ‘We will be engaging with stakeholders on the development of the processes and on the communications and engagement needed to ensure eligible carers are aware of and can apply for this support’, but there are no further details of how and when it will do so.
We have already invited general views on the approach, and are inviting members of the Carer Benefits Advisory Group to a meeting to take input on processes and engagement. This will feed into development work and we plan to share the subsequent draft processes and communications plans with stakeholders for comment once they are worked up. We are also seeking carers who have experience relevant to exportability to support this work, via carer support organisations.
A complaints process, rather than appeal rights, currently exists to rectify any errors in the payment of CAS. Do you know whether any such cases have occurred?
The latest Social Security Scotland feedback statistics show that 75 complaints were received in relation to Carer’s Allowance Supplement between launch in September 2018 and March 2020, during which time 317,055 payments were made to 98,275 carers. A large proportion of complaints received in relation to CAS have been from people who have been missed from a CAS payment run due to the timing of their Carer’s Allowance award, where an award was backdated to include the CAS qualifying date after information had been provided to Social Security Scotland by the Department for Work and Pensions (DWP), or after CAS payments had been made. These clients receive a backdated CAS payment at the next payment run.
In a few cases complaints have identified technical issues which meant carers missed CAS payments to which they were entitled. In these cases Social Security Scotland have been able to work with DWP to confirm eligibility and make payments to carers. As we will not always be able to resolve technical issues which are not in our own systems, we are committed to ensuring that once Social Security Scotland is aware of an issue, this will be flagged for review ahead of future CAS payments. This will ensure processes are in place to prevent eligible carers experiencing problems receiving payments in future.
Scottish Government can make a determination of an EEA resident’s entitlement to CAS with or without application. Would a fresh determination be required in respect of each 26-week period for which a CAS payment is made, or would there effectively be a single, ongoing award with payments made on a twice-yearly basis? I.E. does each such payment of CAS represent a separate award, requiring a fresh determination, or do consecutive payments fall within the same award?
A fresh determination would be made in respect of each Carer’s Allowance Supplement (CAS) payment so there would be no ongoing award. As we would not be requiring carers to report any change of circumstances to Social Security Scotland (rather they will continue to report changes to the Department for Work and Pensions (DWP) in relation to their Carer’s Allowance claim), making a new determination for each payment would ensure that carers are still entitled to CAS before they are paid.
In practice, because we have access to DWP systems for the purposes of CAS, this will not require applications for each payment, instead the intention is that ahead of each CAS payment run, Social Security Scotland staff would review the records of carers outside of the UK who received the previous payment to check if they remain eligible (i.e. that they are still in receipt of Carer’s Allowance and resident in the EEA/Switzerland). Where a carer is still eligible a payment would be made and a determination letter issued. Where it appears a carer is no longer eligible, Social Security Scotland would contact them for further information and if it is confirmed that they are no longer entitled, a payment would not be made and a determination letter to this effect would be issued.