The Scottish Government has amended the version of the regulations that were consulted on so as to extend eligibility to all young carers aged 16-18, irrespective of their educational or employment status. This is a welcome and progressive step that responds positively to the views expressed during the Scottish Government’s consultation.

However, the amended version still does not address the evidence presented in responses to the consultation, and to the Social Security Committee, that the originally proposed criteria do not extend entitlement to the full range of people who may accurately be described as young carers. In particular, there will remain an absence of social security support for young adults over the age of 18 who provide fewer than 35 hours of care per week, or who are in full-time education. Young adults falling into these groups are also living through periods of transition and will face very similar challenges and barriers to their slightly younger peers. Yet under the present proposals they will not receive the YCG and will continue to be ineligible for UK Carer’s Allowance.

The Commission recognises that the resources available to the Scottish Government are not without limit. But it observes that this is a clear eligibility gap and one that appears to run contrary to the stated policy intention underpinning the design of YCG. If not financially feasible to extend eligibility now, the Commission suggests this might be given early consideration in line with social security principle (g) (also reflected in the Charter) and the human rights provision regarding progressive realisation.  This may be something to address in the context of the future design of carer’s assistance.

Recommendation 3: The Commission recommends that the Scottish Government give consideration to the case for extending eligibility, now or in the future, to young adults over the age of 18 not eligible for Carer’s Allowance and invites Scottish Government to provide information on projected costs.

Eligibility for YCG will depend on the cared-for person being in receipt of certain disability benefits. ‘Passporting’ of this kind is often useful and can help simplify the undoubted complexity of the overall social security system. But passporting can also reinforce inequality and exclusion. In the case of YCG, the reliance on qualifying benefits could create a further eligibility gap in relation to young people delivering care to people not in receipt of a qualifying disability benefit. For example, the assessment processes for Personal Independence Payment (PIP) have been criticised as going wrong for many people. This may have the effect of excluding young people delivering care in difficult circumstances, yet who nonetheless have been formally identified as entitled to support from public authorities under the Carers (Scotland) Act 2016.

One way of resolving this issue may be to use the impending devolution of disability benefits to introduce rules and processes that would allow a broader range of people to qualify for disability assistance that would enable more young carers to ‘passport’ onto the YCG.

Recommendation 4: The Commission invites the Scottish Government to reflect on how it might address the identified eligibility gap in relation to young people delivering care to people not in receipt of a qualifying benefit, and to comment on whether the devolution of disability benefits may provide a means to help achieve this.

In scrutinising draft regulations, the Commission will seek to be informed about the evidence used when establishing the level of payment envisaged and determining whether this will be sufficient to deliver the Scottish Government’s policy objectives. UN guidance on the right to social security is clear that the adequacy of social security protection is a pivotal human rights concept. Furthermore, social security principle (e) concerns the Scottish social security system’s contribution to reducing poverty.

It is undeniable that an additional £300 represents an improvement on the level of support currently available to young carers. The fact that the Scottish Government has secured an agreement with the UK Government that receipt of YCG will not negatively impact on eligibility for other benefits is also welcome. It is helpful too that the Scottish Government intends to use eligibility for the Grant as a means of identifying young carers and passporting them to other forms of assistance¹Scottish Government intends to provide YCG recipients with free bus travel from 2020/21 (subject to successful piloting) and to roll out a new carer element to the Young Scot National Entitlement Card, providing non-cash benefits for young carers aged 11-18..

From a human rights perspective, all of this is welcome and positive. Under 18s have rights under the Convention on the Rights of the Child (UNCRC) that the grant may help protect. The Scottish Government must treat the best interests of children affected by its policies as a primary consideration.²Article 3 of the UNCRC: https://www.unicef.org/child-rights-convention/convention-tex Identifying the problems facing young carers and putting in place new support is a sign that the Government is doing this. The Commission also accepts that the Grant may help support young carers’ health, development, education and leisure opportunities; potentially helping reduce material deprivation. The Grant and its role as a passport to other forms of support are therefore a welcome step in the right direction. But how big is that step?

The stated policy aims for YCG appear ambitious when set against the situation many young carers find themselves in. The Commission is not aware of any supporting evidence of detailed analysis undertaken by the Scottish Government that provides a clear rationale for how the figure of £300 was arrived at. Neither has the Commission seen analysis from the Scottish Government to suggest that an annual grant of £300 will be sufficient to achieve its policy aims. In these circumstances it is difficult for the Commission to provide informed scrutiny of the payment level. However, there is a risk that the Scottish Government’s full aspirations for the Grant will not be met by what may be considered a relatively modest annual payment.

Recommendation 5: The Scottish Government is invited to provide more clarity on the evidence base, and process undertaken, to identify £300 as an appropriate, adequate level of payment and to comment on the extent to which it believes the grant will deliver on its policy aims.

It can be helpful when gauging adequacy and promoting joined-up policy to consider the role of social security within the wider context of support. YCG thus needs to be viewed in the context of support available to young carers, notably local authority provision under the Young Carers (Scotland) Act 2016, social care and the complex interaction between social security and post-16 student support. In particular, the intended balance between the contributions and distinct goals of different forms of support need to be considered when gauging whether the amount of social security payment is adequate in that context. Furthermore, there may be scope for increases in one form of support to be offset by reductions in others, or to be subsumed by pre-existing deficits in others.

Recommendation 6: The Scottish Government is invited to comment on what it sees as the appropriate balance between different forms of support for young carers and how it will ensure that the value of YCG is not eroded by reductions or deficits elsewhere.

The focus of the policy aims for YCG are on improving the health and educational outcomes and opening up access to opportunities for young carers. The Scottish Government has cited statistics in support of the Grant which demonstrate that young carers disproportionately experience poverty and social exclusion. There may therefore be a risk that young people in this position are left with little option but to use YCG to support the household’s basic subsistence needs. The extent to which YCG is available to go beyond that, as seems indicated to be the intention, may therefore be questionable.

Recommendation 7: The Scottish Government is invited to provide more clarity on the extent to which it expects the YCG will do more than contribute towards the meeting of basic subsistence needs and whether this reflects the Scottish Government’s policy aims.

It is welcome that the Scottish Government intends to set the required hours of care at 16 as opposed to the 35 hour threshold associated with UK Carer’s Allowance. The Commission regards this as an appropriate recognition of the competing pressures faced by young carers as they potentially juggle caring, education and employment. It is also welcome that the Scottish Government has made provision to ensure that young carers will be able to reach the 16 hour threshold by aggregating care provided to three cared-for people.

But the Commission is concerned that unintended consequences may flow from the strictness of the rules around the qualifying period. The regulations propose a qualifying period of 13 weeks and require that care must have been provided in each and every week, totalling an average of 16 hours per week across the period.

These rules are incompatible with the needs of young people delivering care to those with fluctuating conditions. A remission of symptoms for even a week would render such a carer ineligible. Even if the requirement to deliver care in each week was relaxed, the relatively short qualifying period of 13 weeks is still insufficiently flexible. For example, even a relatively brief period of 5 weeks respite over the three month period, would require a young carer to provide an average of 26 hours of care over the remaining 8 weeks – a 62% increase on the 16 hours identified by the draft regulations as a fair weekly average. The Commission’s view is that could create an unfair position whereby many young carers are excluded by a rule which takes account of only a brief snapshot in time rather than their broader circumstances.

The Commission further considers that inflexibility of the qualifying period undermines the Scottish Government’s key policy aim of supporting young carers through a period of transition. The rules do not take account of many legitimate circumstances in which a young person may not be in a position to provide care temporarily e.g. if they are studying for exams, have a much needed break in which care is provided by another person (which should be encouraged not penalised) or they themselves suffer a period of ill health.

Recommendation 8: The Commission invites the Scottish Government to consider whether the rules relating to the qualifying period can be adapted to mitigate the risks that it could negatively impact people who care for those with fluctuating conditions and that it is insufficiently flexible to reflect the needs and circumstances of young people.

One of the Commission’s chief concerns is that the draft regulations introduce a definition of care that is unnecessary and overly prescriptive. The draft regulations state that the care provided must:

• Assist with the day to day physical tasks and needs of the person being cared for (for example, eating and washing)
• Relate to the mental processes associated with those tasks and needs (for example, the mental process of remembering to eat and wash) or
• Otherwise involve activity that promotes the physical, mental or emotional well-being of the person being cared for

The Commission understands that the Scottish Government’s rationale for introducing this criteria is to bring greater clarity about what counts as care, making it easier for young people to recognise that tasks they may regard as routine in fact count towards eligibility. This is a laudable aim. But the Commission is concerned that the definition provided may in practice achieve the opposite outcome; instead increasing complexity and reducing take-up.

Moreover, the Commission welcomes evidence that the Scottish Government is thinking creatively about how best to give effect to its legal duty to promote take-up of the YCG. For example, the intention to promote take-up using social media platforms and channels that young people are receptive to. It may be that this, and perhaps accessible guidance, would be better routes to enabling young people to identify themselves as young carers.

The Commission also observes that the proposed definition mostly offers a conception of care that seems rooted in activities that resemble personal rather than social care⁵Personal care includes assistance with dressing, feeding, washing and toileting, as well as advice and psychological support. Social care is the provision of assistance with daily living activities, maintaining independence, social interaction and allowing the individual to play a fuller role in society; with ‘staying alive’ rather than ‘having a life’. But ‘care’ can mean many other things, such as supporting a disabled person to lead a fuller life and to participate in society in a way that helps them to realise their own wider social, cultural and economic rights, including those set out in the UN Convention on the Rights of Persons with Disabilities.

As the Scottish Government’s Expert Advisory Group on Carers and Disability Benefits has argued; caring dynamics can vary substantially. What counts as care and what individuals consider to be care is a difficult and complex subject. Often, it is also deeply personal to the individuals concerned. The Commission therefore agrees with the Expert Advisory Group’s view that it is challenging to craft a definition that fairly and accurately captures all of the different kinds of support that a young person may be providing. Indeed, the Commission’s view is that the most likely outcome of a more prescriptive definition, however well intentioned, is that it will in practice exclude people in ways that are incompatible with the policy aims.

It is perhaps for this reason that the Carers (Scotland) Act 2016 does not seek to define what care is and offers instead a simple definition of carers as people who “provide or intend to provide care for another individual”⁶Section 1(1) of the Carers (Scotland) Act 2016. Similarly, the regulations for UK Carer’s Allowance, do not seek to define the nature of care, providing only that it must be “regular and substantial”. The risks of departing from such well-established approaches is that it may undermine the policy intention to help people identify as carers, by in practice narrowing the legal definition of what care is. The resultant risk is that a young person may not apply because they do not recognise the support they provide as fitting with this definition, thereby reducing take-up of the Grant in a way that is not intended.

The Commission further observes that the Scottish Government has not identified whether the proposed definition may have implications for the future design of the Scottish replacement for UK Carer’s Allowance or indeed any other form of Carers Assistance that may be introduced under the Social Security (Scotland) Act 2018. If it is retained for Carer’s Assistance, this will present the difficulties already noted in respect of that benefit too; leading to a position where the Scottish system offers a narrower definition of care than the UK. If it is not retained, then this introduces clear scope for increasing inconsistency across Scottish legislation in terms of how care is defined.

The Commission would also welcome more clarity from the Scottish Government over how they intend both the definition of care and the rules around the qualifying period to be put into operational practice. In particular, it is important to understand what evidence will be required from young carers to demonstrate that care of the kind required has been delivered in 13 consecutive weeks and that it is consistent with, for example, “the mental process of remembering to eat and wash.”

For all of these reasons, and without further information to the contrary, the Commission can only conclude that this more prescriptive definition of care: risks lower take-up; increased confusion and administrative complexity; as well as leaving scope for inconsistent decision making and undermining the policy aim.

Recommendation 9: The Commission recommends that the Scottish Government abolishes the proposed definition of care in favour of a more flexible approach. The Commission’s view is that the Scottish Government’s welcome aim of providing greater clarity could be better achieved through improved guidance and targeted outreach activity.

Draft regulation 4(5) provides that an application for YCG will be considered valid only if it is made in the form and accompanied by the evidence that is required by Scottish Ministers. However the Scottish Government has not yet explained what will constitute a valid application under this rule e.g. exactly what kind and level of evidence will be required and in what form or formats applications can be made. The regulations are silent on these matters and the consultation document states only that this information will be made available upon completion of further service design work.

The Social Security Charter commits the Scottish Government to the design of processes that are accessible and which take account of individual needs. In line with this, the Commission’s view is that guidance on what constitutes a valid claim should be as flexible and generous as is reasonably possible. It is likely that many young carers will be engaging with the social security system for the first time. They may have little access to the kinds of information and paperwork that may be considered pertinent and can reasonably be expected to have minimal experience of navigating a potentially complex administrative process. There may also be a risk that young people may be less confident than others with more experience about challenging or re-applying in circumstances where an application is judged invalid. In these circumstances, it is important that reasonable adjustments are made in order that applications and dates of claim can be preserved e.g. by offering proactive advice and making follow-up enquiries where further information is needed.

A possible anomaly that could theoretically arise as a consequence of the current drafting of the regulations might concern the (presumably rare) event whereby applications for YCG are received from two young carers providing care for the same person. If application A with insufficient evidence is received on Monday, application B with all necessary evidence is received on Wednesday and then the outstanding evidence for application A comes in on Friday, the decision maker needs to know which application should be treated as having been received ‘first’, as this is the one that will get the grant.

Recommendation 10: The Scottish Government is invited to clarify what will constitute a valid claim, including evidence requirements, for YCG, taking account of the Commission’s view that the approach should be as flexible and accessible as possible.

Draft Regulation 7(6) excludes from eligibility people subject to immigration control. This is a relatively standard provision for social security benefits that aligns to the reserved immigration policy of the UK Government. The Commission understands that the Scottish Government intends to approach the Home Office with a view to seeking an exception to this rule in relation to YCG. The Commission encourages this intention; recognising that many young people with no recourse to public funds will be living in particularly difficult circumstances, with very limited access to resources that will restrict their human rights under UNCRC.