Dear Dr Witcher,

Thank you for your letter of 27 July and accompanying report on the Winter Heating Assistance for Children and Young People (Scotland) Regulations. I am grateful to members of the Scottish Commission on Social Security (‘the Commission’) for their scrutiny of these regulations during what has been a very challenging number of months.

I welcome the Commission’s overall view that that Child Winter Heating Assistance (CWHA) is a vital new form of support to disabled young people and the positive impact it is anticipated to have on young people with disabilities.

I am pleased to confirm that I have accepted the majority of the recommendations in the report. A table of responses to each recommendation is detailed at Annex A.

Response to recommendations

Recommendation 1 sets out the Commission’s view that the Scottish Government should consider continuing to produce standalone regulations for provisions such as CWHA and Short-Term Assistance to enable consistency, clarity and in depth scrutiny of each set of regulations. I accept the need to continue to consider the optimal packaging of each set of regulations and, in some instances, the requirement for standalone regulations that relate to other policy areas. My officials will continue to consider the best structure of each set of regulations to provide clarity and consistency.

Recommendation 2 relates to ensuring that children and young people inform the development of assistance that affects them and that their views inform the future development and evaluation of CWHA. The Commission will be aware that a full public consultation was undertaken in 2019, including on proposals for CWHA, in addition to engagement with stakeholder organisations. I accept this recommendation and it may be helpful to note that as part of the future policy evaluation process, the views of children, young people and their families will be sought in considering the efficacy both of the benefit and of the service that delivers it.

Recommendation 3 sets out the Commission’s view that further clarification is required on the rationale for providing eligibility only to clients in receipt of the highest rate care component. It also recommends that the Scottish Government sets out its intention to extend eligibility in the future.

The rationale for providing for eligibility to CWHA for this group of children and young people is to provide some mitigation for the increased costs these individuals incur including as a result of needing to heat their homes through the night, or periods of the night, because, as a result of their disability or condition, they require another person to provide care and support throughout the night. As the Commission know, the highest rate care component of Disability Living Allowance (DLA) sets out that an individual’s needs must be throughout the day and the night.

Neither the other component rates for DLA, nor either component of Personal Independence Payment (PIP) has a requirement for needs to be met through the night. Whilst it might be feasible to develop a more complex and considerative entitlement scheme to include other clients, this would lead to a significant delay in delivery of this assistance and would likely impact on the delivery dates for other forms of assistance including the Child Disability Payment (CDP) and the Scottish Child Payment (SCP). For these reasons I reject Recommendation 3.

Recommendation 4 sets out the Commission’s view that the Scottish Government should produce clear, detailed and accessible guidance to ensure clarity about the process when CWHA becomes payable due to a retrospective award of DLA. As part of the development and delivery of CWHA, it is the intention that detailed guidance will be provided for Social Security Scotland officials administering awards. This guidance will also be publicly available. In addition, guidance for clients will be published by the Scottish Government. I accept Recommendation 4.

Recommendation 5 sets out that as part of the maximisation of take-up amongst 16 to 18 year olds, the Scottish Government should ensure that information on CWHA and the interactions with DLA and PIP is clear and reaches young people and those who support them. As part of the design and development of communications products, it is the intention that this information is clearly set out for clients. I accept this recommendation.

The Commission sets out in Recommendation 6 that, when an opportunity arises, the Scottish Government should consider the feasibility of widening the qualification window for CWHA to include children and young people in receipt of DLA throughout any point of the winter period. The Commission will note that extension of the qualification window is likely to significantly increase the complexity of the delivery of this form of assistance, particularly in relation to the payment of clients in receipt of DLA given that it requires a complex data transfer process jointly delivered by the Scottish Government and the DWP.

I do however accept the need to consider the evolution of this form of assistance to best meet the needs of clients and accept Recommendation 6. A review of the potential for extending the qualifying window will take place once the case transfer process for DLA to CDP is completed. Only once this process is completed, and CDP cases are delivered by Social Security Scotland, will it be possible to consider a significant restricting of the process for delivering CWHA.

Recommendation 7 sets out the Commission’s view that the Scottish Government should extend CWHA entitlement to children in residential care so that they are treated in the same way under the eligibility rules as children in hospital. I am grateful to the Commission for flagging the potential behavioural impact of the proposals in the draft regulations – that some clients would be unable to access CWHA based on whether or not they had visited their home in the qualifying week. I accept this recommendation and the regulations I lay before Parliament in draft will confer entitlement on children in residential care where they receive the highest rate care component of DLA in the qualifying week.

Recommendation 8 sets out that the Scottish Government should remove regulation 4(2) regarding a payment condition not being met where the individual has died before the qualifying week. The Commission also recommends that clear, sensitive guidance is put in place concerning the recovery of over-payments. I accept this recommendation and members should note that clear, sensitive guidance will be developed in relation to the recovery of payments.

The Commission sets out in Recommendation 9 that the Scottish Government should ensure consistency across all types of social security assistance in relation to the test of residency in Scotland. I accept that consistency is desirable however there are practical reasons why consistency cannot be achieved across all forms of assistance. The residency test for each form of assistance may be different because of the nature of eligibility conditions for that benefit.

Where a form of assistance is paid in Scotland based on the individual receiving a ‘qualifying benefit’ from the DWP, a habitual residence test is not required for the devolved assistance because the individual has already evidenced that they meet these in accessing the DWP qualifying benefit. In these instances, the individual need only evidence that their ‘ordinary residence’ in Scotland to be deemed eligible for assistance.

In addition, residency criteria will differ in relation to forms of assistance that are covered by EU coordination rules on social security. On some forms of devolved assistance will be covered by these rules and the residency criteria will, therefore, naturally diverge.

Devolved forms of assistance paid in relation to a data transfer process including CWHA and the Carers Allowance Supplement (CAS) require a simpler residency test than, for instance, new application for CDP. This is required to ensure that payment can be made in relation to a data transfer process and that this is done efficiently and quickly.

I partially accept Recommendation 9 and accept that it is desirable to ensure consistency in relation to residency tests but note that there must be good policy reasons as to why residency tests for two forms of assistance may diverge.

In relation Recommendation 10 the Commission set out that the Scottish Government should clarify what will be treated as the day of application. The day of application is not relevant in relation to CWHA because the assistance is paid in respect of an ‘event’ as a one-off annual payment rather than a ‘period,’ as required by ongoing forms of assistance. The qualifying week is the key to eligibility and, as a result the date of application has no effect on entitlement to assistance. For this reason I reject this recommendation.

Recommendation 11 sets out that the Scottish Government should develop processes for paying assistance to people other than the individual who is eligible that protect and empower young people. As the Commission know, the Social Security Administration and Tribunals (Scotland) Bill (‘SSAT Bill’) includes provisions relating to the appointment of individuals to act on behalf of children, where that individual does not have parental rights and responsibilities (PRRs) for the child. Any making of appointments will be done under the provisions currently included in the Bill on the conclusion of its parliamentary passage.

The regulations do allow payment to other third parties where the client is legally regarded as having capacity (and is therefore 16 or older) and requests that their assistance is paid to another person. Guidance will underpin how that regulation operates in relation to the client’s ability to voluntarily request their benefit to be paid to another individual eg. a parent. I accept Recommendation 11 and note that appointment of appointees will be made under the provisions in the Social Security (Scotland) Act 2018 and, once in force, those provisions as amended by the SSAT Bill.

In relation to Observation 1 the Commission note that the Scottish Government should make every effort to ensure clarity on all key policy areas and provide impact assessments at the time that regulations are referred to the Commission. Whilst I agree with this observation, the Commission will know that the regulations setting out the rules for CWHA in this form were developed as a free-standing set of regulations in less than 4 weeks as part of the replanning process following Covid-19. The impact assessments were provided to the Commission a number of weeks after the regulations due to the limited time that provided to complete the impact assessment process.

The time to complete this activity was limited by necessity as a result of the global pandemic however I agree that every effort should continue to be made to finalise policy and complete impact assessments at the point that regulations are sent to the Commission.

Turning to Observation 2, I can confirm that the regulations have been redrafted to make clearer that anyone who applies for CWHA has the right to a determination. In relation to appeals, the 2018 Act makes explicit provision for appeals resulting from a determination, and our overall approach in making regulations for all forms of assistance under Chapter 2 of the Act has been to retain the rules relating to appeals in primary legislation. I believe this achieves consistency in terms of substance and presentation. However, in all communications with clients who receive a determination, and with stakeholders, the Scottish Government will make clear the individual’s right to a re-determination and appeal to avoid any ambiguity.

Observation 3 sets out the Commission’s view that further clarity about the potential implications of the necessary DWP data not being made available when expected would be helpful. If the data is not provided when expected, it will likely delay the making of CWHA payments to clients. Clearly this would depend on how much later than anticipated the data was provided. However, the Commission should note that all indications from both the DWP and the Scottish Government’s Social Security Programme are that there is not anticipated to be a delay or an issue with the provision of this data.

Once again, I am grateful to members of the Commission for undertaking the scrutiny process of these regulations at relatively short notice, due to the Covid-19 situation. The recommendations and feedback given provide valuable and vital insight into how CWHA can best meet what I’m sure the Commission view as a shared objective with the Scottish Government: ensuring that devolved assistance best meets the needs of the people of Scotland it is designed to support.

Yours sincerely,

SHIRLEY ANNE-SOMERVILLE