The Commission considers that there are a number of areas in which the draft Regulations, or differences of wording between the draft Regulations and the Act, create ambiguity regarding the position of an applicant or recipient. There is an opportunity to clarify, although this need not always require amendment of the Regulations.

One possible source of confusion emerged during the Commission’s stakeholder event in that the language used in the first draft Regulations to describe the relationship between the qualifying reserved benefit and the SCP differs from that used in s79 of the Act. Whereas the Act refers to the payment of financial assistance to a person who is entitled to a reserved benefit, mirroring the wording of the Scotland Act 1998, the Regulations limit eligibility to someone who has been awarded one of the specified benefits. Some stakeholders questioned whether being entitled to a reserved benefit might cover a wider range of people than those who have been awarded the benefit. UK law states that in most circumstances there is no entitlement to benefit in the absence of a claim in the prescribed form, regardless of whether other criteria are met.  The wording of the Regulation therefore appears to be consistent with the DWP’s interpretation of entitlement. However, the fact that stakeholders saw the rules as a matter for debate points to a need for clear guidance and communication about what is required.

Recommendation 9: In light of the different terms used in the Act and draft Regulations, the Scottish Government should publish guidance explaining that an award of the qualifying reserved benefit is required to confer eligibility to the SCP, or any other top-up under section 79.

Draft Regulation 14 is clear that a person has a live claim for a qualifying benefit even if their award is reduced to zero as a result of a sanction. The draft Regulations do not specify whether someone with a nil award for another reason, but who technically has an open claim for a qualifying benefit, would be treated similarly, or whether a decision to retrospectively reduce an award of tax credits to zero would result in SCP received during the same period being treated as an overpayment. Equally, there is a lack of clarity about the implications for an SCP claim if payment of the qualifying benefit is suspended while the DWP investigates the claimant’s continuing entitlement. Either the Regulations or the Decision Maker Guidance should clarify these matters.

Recommendation 10: The Scottish Government should clarify the circumstances in which a nil award of a qualifying benefit can confer entitlement to the SCP, ideally in the Regulations but, failing that, in Decision Maker Guidance.

In accordance with draft paragraph 3 of the Schedule, it appears that where two individuals apply for the SCP on behalf of the same child, and both are otherwise equally entitled to receive the payment, the first application will prevail. It is not currently clear who would receive the payment in the event that one person is determined to meet the criteria following an application, while another is determined to meet the criteria without application. It can take time to resolve who receives what social security awards following parental separation and the SCP introduces a further layer of complexity.

Recommendation 11: The Scottish Government should ensure the Regulations and guidance are clear on how competing applications will be resolved, including any right of appeal that the unsuccessful applicant might have, taking into account the fact that one applicant might not be aware of the other application