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

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Residence and presence conditions

CDP has conditions about presence in Scotland and the UK which specify how long a child must have been in the UK before they can be eligible. This is 13 weeks for babies under six months, 26 weeks for infants up to age two, and two years for children from age three. This two-year ‘past presence’ test in DLA has been held by the Upper Tribunal[1] to be in breach of the United Nations Convention on the Rights of the Child (UNCRC) and the European Convention on Human Rights (ECHR). The remedy given is to apply the 26-week past presence test to all children from the age of six months.

The Scottish system of social security recognises that social security is itself a human right. Protecting and fully realising human rights is fundamental to the system. Indeed, it is not within devolved competence for the Scottish Government or Scottish Parliament to make legislation that is incompatible with the ECHR. Furthermore, the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill, if passed by the Scottish Parliament, will make it unlawful for a public authority to act in a way which is incompatible with the UNCRC requirements.

Recommendation 12: The Scottish Government should consider how to amend the past presence test for CDP to ensure that it complies with human rights legislation.

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