5. Drafting issues
The draft regulations make a number of references to “Invalid Care Allowance”. The Commission understands that this term is obsolete and has been for a considerable period since being replaced by the term “Carer’s Allowance”. Moreover, this historical term is outdated and incompatible with the commitment in the social security principles to respect and dignity.
Recommendation 11: The Scottish Government should check with DWP that the term “Invalid Care Allowance” is obsolete and, if so, consider removing reference to it from the draft regulations.
The way that draft regulation 7(1) is framed may introduce a degree of circularity. It provides that an applicant is not entitled to a grant if, on the day of their application, they are in receipt of Carer’s Allowance or Carer’s Assistance payable under the Social Security (Scotland) Act 2018. However Young Carer Grant is itself a form of carer’s assistance under the 2018 Act. There is a risk that the provision may imply that an applicant cannot receive Young Carer Grant if they are in receipt of a Young Carer Grant.
The Commission accepts that the provision is not necessarily incorrect. The YCG is not an ongoing payment and can be claimed only once every 12 months. This means that if a person is in receipt of a ‘current’ YCG (i.e. one paid within the last 12 months) then they are ineligible for another. In a technical sense the drafting therefore works. But it is potentially confusing and carries a risk that applicants, decision makers and welfare rights advisors could misinterpret what counts as being “in receipt” of carer’s assistance and incorrectly conclude that an individual is ineligible.
Recommendation 12: The Scottish Government is invited to consider whether Regulation 7(1) could be phrased more clearly to avoid risk of confusion about what counts as being “in receipt” of carer’s assistance.
Draft regulation 7(4)(b) introduces an exception to the rule that only one person can receive a YCG in relation to a cared for person in circumstances where the recipient of the original Grant dies.
While this exception is welcome, the Commission observes that there are other reasonable and legitimate circumstances in which caring responsibilities between young people will unavoidably shift. For example, the original recipient may fall ill, become incapacitated or accept an employment or educational opportunity abroad. In such circumstances it seems reasonable that if another young person assumes the outstanding caring responsibilities, they too should be eligible for support.
Recommendation 13: The Scottish Government is invited to consider whether the exception made in regulation 7(4)(b) could be broadened to encompass other circumstances than the death of the original YCG recipient, where caring responsibilities reasonably shift between young people.
Draft regulation 11 allows Scottish Ministers to award a Grant without application. This power would be exercised in circumstances where a previous YCG application was rejected purely because the cared-for person was not, at the time of application, in receipt of a qualifying benefit. The idea is that if the cared-for person subsequently receives a backdated award of a qualifying benefit as a result of a successful appeal, then it is reasonable to pay the YCG without receipt of a further application. This is a welcome provision that should, subject to effective implementation, have the effect of reducing the burden on young carers to reapply.
However, there are other common ways for a backdated award to come about e.g. following a decision on a claim or following a revision or supersession. Moreover, the Commission observes that draft regulation 11 does not appear to take account of other circumstances in which it is reasonable that Scottish Ministers should seek to overturn a previous decision without application, notably, upon discovery of official error in the YCG determination. In these circumstances, as things stand, the onus would appear to remain on the young carer to reapply.
Recommendation 14: The Scottish Government is invited to consider whether regulation 11 as drafted makes adequate provision for other circumstances in which it would be reasonable to expect that Scottish Ministers would award a Grant without application.
Schedule 2 part 2, paragraph 11(1) of the Social Security (Scotland) Act 2018 stipulates that carer’s assistance regulations “may allow carer’s assistance to be given to an individual in a form other than money only if the individual (or a person acting on the individual’s behalf) has agreed to the assistance being given in that form”. Draft regulation 12 (3) provides that YCG is to be given in the form of a single payment of £300, unless the applicant agrees to an offer from Scottish Ministers to accept the Grant in a form other than money. While the Commission broadly welcomes scope for flexibility about the form the Grant takes, it would be desirable to emphasise that, while the Scottish Government may offer a range of options, it is wholly the young carer’s choice to make, and that choice must be fully informed. Young carers need to feel confident that they are under no compulsion to accept an ‘offer’.
Recommendation 15: The Commission invites the Scottish Government to consider whether the regulations could be strengthened to underline that the form YCG is given in is wholly the choice of young carers and invites Scottish Government to comment on how it will ensure young carers are fully informed about this and to outline the options that can be offered, as shaped by the consultation.
Paragraph 1 of Schedule 2 of the Social Security (Scotland) Act 2018 requires that carer’s assistance regulations must be framed so that eligibility depends on the provision of “regular and substantial care.” Further provision is made to allow carer’s assistance regulations to define “the circumstances in which an individual is to be regarded as having provided regular and substantial care to another individual during a period”. However the Act does not elaborate on whether this would allow for different sets of carer’s assistance regulations (e.g. for YCG and Carer’s Allowance) to define “regular and substantial” in different ways. Similar to the points made about the definition of care, this would appear to leave scope for substantial inconsistencies across different forms of carer’s assistance for what counts as “regular and substantial” provision of care. Whether or not this is legally permissible, and the Commission has not had the opportunity to take independent legal advice on this matter; and whether or not such flexibility is helpful or risks creating complexity and confusion, the rationale for the same provision being differently defined in different contexts would benefit from clarification.
Recommendation 16: The Scottish Government is invited to clarify whether Schedule 2 of the Social Security (Scotland) Act 2018 leaves scope for different definitions of “regular and substantial care” to appear in different sets of regulations. If so, the Scottish Government is invited to offer a view on whether this risks inconsistency, complexity and confusion.