Winter Heating Assistance for Children and Young People (Scotland) Amendment Regulations: scrutiny report

Most of the draft Regulations relate to the amendment of the eligibility criteria for CWHA, so that PIP (daily living component, enhanced rate, and whether initially awarded under the legislation for Great Britain or Northern Ireland) becomes a qualifying passporting benefit. Draft Regulation 5 amends WHACYP Regulation 4 to this effect. WHACYP Regulation 4(1)(a) already stipulates that entitlement depends on being a child or young person. Regulation 2 defines a young person as ‘a person who is aged 16, 17 or 18’. Regulation 7 amends WHACYP regulation 8 so that Social Security Scotland must make a determination without application of retrospective entitlement to CWHA when an appeal results in an award of PIP at the qualifying rate, covering the qualifying week for CWHA.

By accepting PIP as a passporting benefit, the Scottish Government is departing from the original rationale for CWHA. This was that higher rate care component of DLA (or CDP) reflects night-time care needs, and therefore a presumed need to heat the home at night. The enhanced rate daily living component of PIP does not require any night time care needs. Extending eligibility to people who do not have – or at least need not provide evidence of – night-time care needs and therefore do not necessarily have night-time heating-related costs, might raise questions about efficiency and value for money (principle h). However, SCoSS believes any such concerns are outweighed by the arguments in favour of the change. Indeed, our report on the WHACYP Regulations called for further clarification of why the highest rate care component of DLA had been selected as the qualifying payment.

Since there is no element of a PIP award that specifically reflects night-time care needs, an individual with extensive care needs, including if they happen to be at night, will receive the enhanced rate daily living component. Under the current WHACYP Regulations, if two young people, one in receipt of DLA and the other in receipt of PIP, had identical care needs, the first would be entitled to CWHA while the second would not. This is an equality issue that could potentially raise questions of compliance with article 14 of the European Convention on Human Rights, as the positions of two individuals may be largely analogous, but one is excluded from a social security payment to which the other is entitled because they receive a different disability benefit. Addressing this disparity, then, is arguably an improvement to the devolved system in a way that advances equality and non-discrimination, in keeping with principle g(ii). The impact assessments accompanying the draft Regulations state that an alternative option of receipt of enhanced rate PIP plus night time care needs was considered but rejected due to administrative complexity for both disabled young people and Social Security Scotland. Automated payment would be impossible and each young PIP recipient hoping to be awarded CWHA would have to submit an application for consideration. That means there is also an efficiency and value for money argument in favour of the approach adopted, which allows CWHA to remain an automatic payment to virtually all recipients.

However, SCoSS notes that extending entitlement to CWHA to young people receiving the enhanced rate daily living component of PIP does nothing to address the equality point made in our report on the WHACYP Regulations, namely that children and young people with lower level awards of DLA, CDP or PIP may also have additional heating needs, but do not receive this assistance. This point potentially becomes more relevant than previously, given that the draft Regulations will weaken the link between night-time care needs and CWHA.

Recommendation 1: Following completion of the transition from DLA and PIP to CDP and ADP, the Scottish Government should review passporting arrangements to CWHA, to ensure consistency and equitable treatment of people with the same relevant needs, including specifically with regard to night-time care needs.

There is a difference in how the CWHA rules operate for young people in hospital depending on whether their qualifying benefit is DLA or PIP. In general, if a child or young person is admitted to hospital before their 18th birthday, there is no change to their DLA or PIP award, however long they stay. If an individual aged 18 or older is admitted to hospital, payment of DLA or PIP stops after a spell. New WHACYP Regulation 4(5) (inserted by draft Regulation 5) protects young people in receipt of PIP from loss of CWHA in these circumstances by stipulating that entitlement to PIP at the required rate confers entitlement to CWHA even if the PIP award is reduced to £0 due to residence in a care home or hospital during the qualifying week. People in receipt of DLA only receive comparable protection (under WHACYP Regulation 4(2) if their payment is stopped due to admission to a care home. This means that an 18-year-old with an award of DLA, who did not receive a DLA payment during the qualifying week because of being in hospital, would miss out on CWHA for that year.

Recommendation 2: The Scottish Government should consider whether WHACYP Regulation 4(2) should be amended to ensure young people in hospital are not inadvertently excluded from CWHA.