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

WHACYP Regulation 4(7) (inserted by draft Regulation 5) allows backdated awards to cover the first qualifying week for CWHA (the week commencing 21 September 2020) if the individual would have been entitled to CWHA at that time, had these amendments been in place. WHACYP Regulation 10(1A) (inserted by draft Regulation 8) clarifies that retrospective awards for the September 2020 qualifying week are to be for the amount applicable at that time (£200), not the uprated amount payable in respect of the September 2021 qualifying week (£202).

WHACYP Regulation 5A (inserted by draft Regulation 6) requires Social Security Scotland to make a determination without application of retrospective entitlement to CWHA where it appears a young person would be covered by Regulation 5(7).

Retrospective awards to young people who were in receipt of PIP during the first qualifying week will undoubtedly be welcomed by those who benefit from them. Taking this approach does, however, set a potentially awkward precedent for future changes to devolved social security assistance that have the effect of widening entitlement. It might create an expectation that retrospective awards would also be made on those occasions. One possible argument for making retrospective awards of CWHA, but not of other benefits for which the eligibility criteria might change in the future, could be that the Scottish Government feels the original approach could be vulnerable to challenge under article 14 ECHR (see above). Since neither the Scottish Government nor Scottish Parliament has competence to act contrary to the ECHR, a successful challenge on these grounds would mean the exclusion of young PIP recipients was unlawful and it is possible (although not inevitable) that a court or tribunal would then require retrospective awards. The Scottish Government has informed SCoSS that it believes the amended eligibility criteria comply with article 14. While officials expressed the view that young people in receipt of PIP should always have been eligible for CWHA, they did not indicate whether the Scottish Government had any concerns about the compatibility of the original criteria with article 14.

Observation: SCoSS would welcome an explanation of the rationale for making retrospective awards of CWHA to young people who were in receipt of PIP in September 2020.