Draft Social Security (Up-rating) (Miscellaneous Amendments) (Scotland) Regulations 2021

Advance applications

Being able to apply for a benefit in advance is a useful provision when a child is likely to qualify in the next few weeks or months. It gives Social Security Scotland time to assess entitlement and make the payment as soon as the qualifying conditions are met. It also allows for flexibility if someone has claimed at the ‘wrong’ time, for example during the 13-week qualifying period for satisfying a disability condition. As drafted, regulation 20(2) permits advance claims during the qualifying period for a care or mobility component, or for a baby before the lower age limit for the care component of 3 months. However, the scope of this provision is not clear, and may be narrower than intended. For example, it does not appear to permit an advance application for a child approaching their 3^rd or 5^th birthday – the lower age limits for higher and lower mobility component respectively. It seems reasonable to allow applications in advance of any of the qualifying conditions being met. We suggest this be clarified in regulations.

On a related issue, a child should be able to serve the 13-week qualifying period before their birthday, allowing entitlement to start as soon as they reach the lower age limit of 3 or 5-years-old. However, as drafted, it appears as though a child would have to wait until they were aged 5 years and 3 months before qualifying for lower rate mobility component (regulation 6(7)(a)). We suggest regulations clarify that entitlement can begin at the lower age limit.

On a technical note regarding regulation 20:

• We understand that regulation 20(2) will be amended to provide for Scottish Ministers to treat an advance application as having been made on the day requirements are satisfied, not as the draft regulation says ‘on a day after which those requirements become satisfied’.
• References in regulation 20(2)(a) to regulations 6(5) and 7(10), appear to reference the wrong paragraphs.
• Regulation 20(5) fixing the start date of entitlement when an application is received late should refer to paragraph (1) and not paragraph (2). We assume the intention is that the start date will normally be the day the application is received.

Recommendation 9: The Scottish Government should:

• clarify in the regulations the circumstances in which an advance application can be made, with a view to a broad flexibility;
• clarify in the regulations that the qualifying period for the lower rate mobility component can be served before a child’s 5^th birthday;
• attend to the technical issues noted in relation to start dates for entitlement.

Underpayments caused by official error

People will usually challenge CDP awards by asking for a re-determination and appeal. If the award is found to be wrong, the child will get full arrears paid whatever the reason the award was wrong, including official error. An official error is a mistake made by the state (Scottish or UK Government). If it is too late to correct an official error the usual way, Social Security Scotland can still change an award through the ‘determination without application’ process. However, through this process, regulation 27(1)(d) starts correct entitlement from the date on which Social Security Scotland becomes aware of the official error. If that would be ‘unjust’, there is discretion in regulation 27(2) to set an earlier date and pay arrears further back.

The Charter promises to ‘pay you on time in the right amount’ and goes on to say, in the context of encouraging complaints when things go wrong, that Social Security Scotland will ‘do everything we can to make things right’. To make good on the Charter commitments, it is hard to imagine in what situations it would be fair or just to withhold fully backdated correct entitlement when an official error has been established. Further, relying on an exercise of discretion to decide whether to pay or not seems an unnecessary barrier, and possibly one that would be subject to challenge on human rights grounds, depending on how it is used in practice.

If the Scottish Government has strong reasons for needing the power to withhold payment, there should be specified exceptions. The general rule should be that a child has a right to receive their correct entitlement fully backdated.

We also note that, as currently drafted, this rule is now out of line with both Scottish Child Payment (SCP) and DLA. In the interests of consistency across Scottish benefits, CDP and SCP rules on paying arrears due following an official error should be the same unless there is a good reason for the difference.

Recommendation 10: The Scottish Government should amend the regulations so that the general rule is that a child has a right to receive their correct entitlement fully backdated when an official error has caused an underpayment.

Payments

The Scottish Government has said it will offer various payment methods as well as paying into a bank account, such as a Post Office or Credit Union account or digital voucher system, recognising that payment method is of particular importance for some communities and for young adults who have not yet opened an account.

We are not clear that the draft regulations reflect this intention. On reaching age 16, it seems that Social Security Scotland is required to take action if a young person has not notified ‘their bank details’, which we assume means CDP payment will end (regulation 24(1)(a)(vii)). Officials have told us that this would be a last resort and, in any case, the regulation will be modified when provision to suspend entitlement is introduced under the Social Security Administration and Tribunal Membership (Scotland) Act 2020.

There is a further technical issue with payments. If a child should die while entitled to CDP, instead of a run-on of entitlement, the policy seems to be to make an extra payment equivalent to 8 weeks of entitlement. Drafting of regulation 30(6) does not clearly achieve this. For example, it links the amount of the extra payment not to the weekly rate applicable at the date of death but to the amount actually paid in the week ending with the date of death, which does not seem to fit with a 4-weekly payment cycle.

Recommendation 11: The Scottish Government should:

• ensure that the policy intention on flexible payment methods for young people is fully realised in the regulations;

ensure that regulation 30(6) achieves the policy intention of paying the equivalent of 8 more weeks CDP if a child dies.