Annex A: Overview – constraints and discretion
The Act requires that the Scottish Ministers annually uprate regulations concerning carer’s assistance, disability assistance, employment-injury assistance and funeral expense assistance where “in their opinion” the existing amount falls “materially” below its inflation-adjusted level. In its response to SCoSS’s earlier report on the approach to uprating, the Scottish Government stated that “uprating relates purely to ensuring that the value of assistance keeps up with the change in the general level of prices over time” .
The Act does not prescribe a specific measure of inflation. Rather, sections 77(4) and (5) require Ministers to take into account the effects of changes in ‘relevant’ prices, with ‘relevant’ to be defined by themselves.
The forms of assistance currently in place that must be uprated (subject to being deemed materially below inflation-adjusted levels) are Funeral Support Payment and Young Carer Grant. The Scottish Government must also report on the impact of inflation on any form of assistance covered by Part 2 Chapter 2 of the Act. It may exercise discretion to uprate these and other forms of devolved assistance. From the end of the current financial year it will need to report on top-up payments created under section 79 and annually uprate Scottish Child Payment (SCP) .
The Scottish Government must also publish a report under section 77 of the Act. Its purpose can be summarised as to provide information on what Scottish Ministers have calculated inflation adjusted levels to be, how they were calculated, what they have done or intend to do in light of that and their reasons.
The approach taken in these draft regulations demonstrates that the Scottish Ministers have considerable discretion when it comes to uprating. This includes:
- What index/ indices to use as the measure of inflation.
- Not to uprate any forms of assistance unless “in their opinion” it is “materially below its inflation-adjusted figure” (section 78(1)). In our previous report we asked the Scottish Government how it would define ‘materially below’, at which point we were told that policy was still under development.
- Whether ‘uprating’ is taken to mean solely maintaining the value of benefits or whether it can also mean increasing their value ‘in exceptional circumstances’.
- What they regard as ‘exceptional circumstances’ that would justify taking a different approach to the one set out.
- Whether only to report annually on inflation-adjusted figures for assistance covered in Part 2 Chapter 2 of the Act, or to maintain or increase their value.
- Whether just to report on any further top-up benefits created under section 79 or to undertake to uprate their value annually (as will be required for SCP).