- 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
Summary of recommendations and observations
Recommendation 1: Periods allowed for determination requests and the making of redeterminations should be consistently expressed in either calendar or working days. The Scottish Government should aim to ensure consistency across all forms of devolved social security assistance unless there are good, explicit reasons for taking a different approach.
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.
Recommendation 4: The Scottish Government should publish the clearest possible guidance on circumstances within which applicants are likely to pass the ‘competent state’ test and update this as significant developments occur.
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.
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.
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.
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.
Recommendation 9: The Scottish Government should provide details of any planning to date on promoting take-up of CAS and YCG among newly-eligible groups, including the promotion of retrospective applications, in a proportionate way in keeping with social security principle (h).
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.