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

Our original report noted that children staying in a care home or residential school lost entitlement to CDP altogether. This had real disadvantages including loss of passported benefits. The proposal for CDP was different to DLA, where payment would stop but entitlement would continue. It was necessarily different because there was no power in the Social Security (Scotland) Act 2018 to stop payment. We recommended that the Scottish Government consider amending the Act to enable entitlement to remain while payment is suspended.

The Social Security Administration and Tribunal Membership (Scotland) Act 2020 will allow Scottish Ministers to pay a nil amount in respect of some or all of an award when an individual is resident in a specified place. The revised regulations reflect the policy intention to pay a nil amount instead of removing entitlement when a child is staying in a care home or residential school, or is in legal detention.

Stakeholders have warmly welcomed this change, which also means that children and their families will now retain entitlement to passported benefits.

There are aspects of the regulations which could be further improved:

• If a CDP application is made while a child is staying in a care home or residential school, regulation 14 provides for care component entitlement to begin when they leave. As stakeholders have pointed out to the Commission, this has implications for passported entitlements. It means, for example, that parents cannot access a disabled child element in universal credit based on the care component until the child leaves the care home or school and cannot claim exemption from the benefit cap. For DLA, parents would have access to these passporting benefits because only payment of the care component would be deferred until the child left the care home or school, allowing entitlement to be established.

Recommendation 7: The Scottish Government should amend regulation 14 to allow a nil amount to be paid when entitlement begins while a child is resident in a care home or residential educational establishment.

• The Scottish Government aims to support children and young people in legal detention to transition back into a community setting by continuing to pay CDP mobility component to help the family keep in contact with the child. However, CDP care component payment stops while in custody. No CDP arrears are paid if a child or young person is released from legal detention without charge or sentenced to a non-custodial prison sentence, in contrast to the DLA rules. Given the policy intention is to make rules on payments in alternative accommodation more consistent by aligning rules in legal detention with care homes and residential schools, this divergence from DLA rules may be intended.

Recommendation 8: The Scottish Government should clarify whether the policy intention is not to pay CDP care component arrears if a child or young person is released from legal detention without charge or sentenced to a non-custodial prison sentence.