Scottish Child Payment Regulations 2020: scrutiny report

The Scottish Commission on Social Security's scrutiny report on the draft Scottish Child Payment Regulations 2020 with recommendations for the Scottish Government.

The rights of the child

Social security principle (b) highlights that social security is both a human right in itself and a contributor to the realisation of various other rights. While the Commission’s remit is to scrutinise draft Regulations, these exist to implement a policy objective and we cannot seriously discuss human rights implications without looking at the policy. Regulations will only advance human rights if the policy intent is to do so. However, we make clear in places that there are political choices to be made that lie outwith our remit.

It is apt that the Commission has been asked to consider draft Regulations that it is bound to conclude will have a positive impact on children’s enjoyment of social and economic rights as the Scottish Government moves towards incorporation of the Convention on the Rights of the Child (UNCRC) into domestic law. The UNCRC confers a wide range of civil, political, economic, social and cultural rights upon children. Four of these appear particularly relevant to the SCP.

  • Article 2(1): Protection from discrimination
  • Article 3(1): The best interests of the child
  • Article 26: The right to benefit from social security
  • Article 27: The right to an adequate standard of living.

We look at the particular implications of these articles in turn below.

In accordance with Article 2(1), the SCP will help protect children in low-income families from poverty and as such can be viewed as a positive measure contributing to protection from disadvantage. It is likely that female-headed households would disproportionately benefit from any increase in child-related assistance. Such households have been disproportionately among the ‘losers’ following recent UK-level reforms.  The equality impact assessment highlights other household types that are more likely to experience low income and therefore more likely to benefit from the SCP, such as households including a young mother or a disabled child. However, the way in which the SCP is implemented will have an important role to play in ensuring it makes the maximum contribution to tackling inequality while avoiding the creation of new examples of discrimination. Points made below on promoting awareness and take-up will be relevant here.

At present, the clearest example of unequal treatment – and one of the main limitations on the likely positive effects on children’s rights – flowing from the SCP is the fact that the initial roll-out is only to children under six years old. International law allows states to work towards the progressive realisation of social and economic rights, and this kind of incremental progress can be seen in the intention to extend the SCP to older children at a later date. However, the phased approach does create differential treatment between children of different ages.

During the Commission’s engagement with stakeholders, particular concern was expressed about those children who will be eligible for the SCP for a short period, then lose eligibility because their sixth birthday falls before the next phase of roll-out. This could mean a drop in household income at a point when UK-wide research indicates a jump in school-related costs is likely to occur and as food costs increase.

The Scottish Government has told us that around 50,000 children may be affected, and that this results from difficulty accessing the administrative data necessary to assess the eligibility of older children. Logically, since the data on existing children will be already held by Social Security Scotland, there might be scope for a transition plan that would aim to ensure that those children who have received the SCP for a period, whose sixth birthday has passed, but whose household still receives a qualifying benefit, and who still meet the criteria, continue to be paid SCP. The responsible adult could be asked, periodically if necessary, to provide evidence of ongoing responsibility for the child in order to continue to receive the SCP, or simply be required to report any subsequent change in circumstances to Social Security Scotland.

Recommendation 1: The Scottish Government should explore whether there is any deliverable way of ensuring continuity of SCP support to those families who meet the criteria, avoiding loss of entitlement when a child turns six between the launch of the SCP and its extension to older children.

Article 3(1) requires public authorities to treat the best interests of affected children as a primary consideration – although not necessarily as the primary consideration – in any actions affecting children’s welfare. The UK courts have found that social security reforms that reduced the incomes of households including children – the benefit cap and the two-child limit on tax credit and universal credit entitlement – failed to treat the best interests of the child as a primary consideration.  By directing additional resources to low-income households including children, it is all but certain that the SCP would be regarded as being in the interests of the 170,000 children who are projected to benefit from its introduction. The Commission notes that the view was expressed in some of the Scottish Government’s stakeholder engagement that the SCP should not be regarded as a measure to mitigate the impact of UK level reforms. In practice, though, there is no doubt that it will go some way towards doing so for households affected by the benefit cap and two-child limit, as well as the recent freeze on working age benefits.

It is not necessary to consider the right to benefit from social security (Article 26) in detail here. Any measure that uses social security assistance to help households with children enjoy an adequate standard of living (Article 27) can be viewed as a step towards the realisation of the child’s right to benefit from social security. What constitutes an adequate standard of living is not clearly defined in international law. It can be argued that, in setting targets for the near-elimination of child poverty according to four definitions18, the Scottish Parliament has established its own benchmark for an adequate standard of living for  households including children. If the SCP delivers the policy objective of a three percentage point reduction in relative poverty among children following full roll-out, it will contribute to the realisation of this right. It is not currently clear how great a reduction of poverty is likely to flow from the initial introduction of the SCP for children aged under six, but some reduction can be anticipated given that families with young children are disproportionately likely to be poor.

A higher payment of the SCP than the £10 per child per week envisaged by draft Regulation 18 would be likely to lift more children out of poverty and would certainly decrease depth of poverty by a greater extent, making further progress towards the realisation of the right to an adequate standard of living. Here, the Scottish Government must strike a balance between (to use the language of the social security principles) poverty reduction and value for money, or (to use human rights language) the advancement of social rights and the available resources. This can only be a political calculation. As with the choice of qualifying benefits, it is clear that this issue has been considered in some detail in the development of the SCP,  but as with other aspects of the payment its adequacy is something that might be explored in the future in partnership with recipients.

However, adequacy of income is not simply a matter of the amount received. For people on a low income, the gap between payments can have a significant impact on ability to successfully budget. This is why universal credit claimants in Scotland have been given the option of requesting twice-monthly rather than monthly payment. There appears to be a case for offering a choice of more frequent SCP payments than the four-weekly cycle currently envisaged by draft Regulation 18. The Commission understands that this may not be possible at present due to Social Security Scotland’s workload pressures, but the matter should be kept under review. Given that SCP entitlement is calculated on a weekly basis, it does not currently make sense to align payment patterns with universal credit, but this could be considered in the future if the decision were taken to move to monthly calculation.

Recommendation 2: If and when it can be operationally delivered, the Scottish Government should give claimants a choice of more frequent payments of SCP. The Scottish Government should consider the desirability and feasibility of aligning SCP payments with universal credit in the future, including a choice between monthly or twice-monthly payments. 

A sustained impact on child poverty and living standards – and therefore to meeting human rights commitments – will depend on the SCP maintaining its real value over time. In accordance with draft Regulation 19 and section 77 of the Act, the SCP is to be uprated in line with inflation. The Commission has previously endorsed the Consumer Price Index (CPI) measure of inflation as the basis for uprating devolved social security assistance, at least in the medium term. However, a case can be made that the SCP is different to other forms of devolved assistance due to the specific policy intent of reducing relative child poverty by three percentage points. Relative poverty rates are calculated by comparing household incomes. This means that if CPI inflation were used to uprate the SCP, but the median income increased faster than the CPI, the impact of the SCP on relative poverty would be reduced. Conversely, if income growth were chosen as the basis for uprating, then in years when prices rose faster than incomes the SCP would have less of an impact on absolute child poverty. The Joseph Rowntree Foundation and Institute for Public Policy Research have argued for the adoption of a ‘double lock’ approach to uprating, based on the higher of CPI inflation and income growth each year.23 This would be the most effective way of ensuring the SCP remains an effective means of reducing child poverty.

Recommendation 3: In view of the specific poverty reduction objective for the SCP, the Scottish Government should consider a ‘double lock’ approach to uprating the SCP, so that payments increase annually by the higher of CPI inflation or growth in median income.

In order for the SCP to make the maximum possible progress towards human rights, the fulfilment of social security principles and child poverty reduction goals, it goes without saying that the greatest possible number of eligible households need to receive the payment. This applies to any form of social security assistance – hence the Social Security Committee’s ongoing inquiry on take-up – but specific considerations apply to the SCP due to its payment as a top-up to a qualifying UK benefit. Claimants of the qualifying reserved benefits need to know about the SCP and face as few barriers as possible in the application process. The Scottish Government also needs to consider the underlying fact that significant numbers of potentially eligible households do not claim the qualifying benefits that can be ‘topped up’ by the SCP. Any contribution it could make to improving take-up of these benefits would make an even bigger impact on income for these families following the introduction of the SCP.

The Commission welcomes the Scottish Government’s intentions to encourage take-up of the SCP, following on work completed for the previously-published Benefit take-up strategy.  We were pleased to learn that work on how to minimise barriers to access is underway, including the aspiration to automate payment if this is possible in the future. Initiatives to maximise take-up would benefit from ongoing monitoring in partnership with actual or potential SCP claimants, including the development of inclusive communications, the accessibility of the various application channels envisaged and efforts to eliminate stigma. The crucial contribution of the voluntary and community sectors to raising awareness and driving take-up is recognised by the Scottish Government, backed up with a promise of extra funding, and reflects the view of contributors to the Commission’s stakeholder event.

A recurring theme was the lack of trust in statutory agencies among certain social groups, a point also made in the early publications emerging from the social security experience panels, and the need for trusted individuals and organisations to promote the SCP. While the Scottish Government has referred to the provision of information at hospitals along with birth registration cards, stakeholders felt midwives and health visitors also had a role to play, so that reliance was not solely placed on paper communication. People who assume care of their grandchildren at an age when such professionals are no longer involved were identified by stakeholders as a possible harder-to-reach group that might require more creative and targeted interventions, for example, involving social landlords in communicating information to tenants who may be eligible. Automatic payments to eligible households are clearly desirable. In the event that this is not achievable in the near future, stakeholders suggested that an automatic pop-up during universal credit applications from Scottish addresses – which would require cooperation from DWP – or measures to identify specific households with an unclaimed entitlement should be considered.

Recommendation 4: The Scottish Government should continually review its approach to promoting take-up of the SCP with input from stakeholders, claimants and potential claimants. The Scottish Government should work proactively with the DWP with a view to making automatic awards of SCP in the future.

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