Draft regulation 7, dealing with applications, states that an application is to be treated as made on the day—

“(a) it is received by the Scottish Ministers, or

(b) when the Scottish Ministers receive evidence of a genuine and sufficient link to Scotland”.

Clearly, the day an application is received and the day evidence of a genuine and sufficient link to Scotland is received could be different days. Furthermore, the day of application is relevant to the right to getting a determination and therefore onward redetermination and appeal rights. It would therefore be helpful to clarify which day will take priority.

Recommendation 10: The Scottish Government should clarify what will be treated as the day of application.

At present the draft Regulations only place a duty to make a determination on an application if the individual is thought to be entitled to CWHA. However, the Social Security (Scotland) Act (sections 37 and 40) requires that a determination be made and notification issued whatever the outcome. This is an important procedural point, as a notification of determination is required in order to be able to request redeterminations and appeals.

Having raised this with Scottish Government officials we welcome their confirmation that regulation 6 will be re-drafted to make clear that anyone who applies for CWHA – however that application is decided – will receive a determination and will, therefore, have a right to a redetermination and a subsequent appeal.

Observation 2: SCoSS welcomes the Scottish Government’s expressed intention to amend the regulations to make it clear that anyone who applies for CWHA will have a right to a determination and appeal.