Section 97 of the Social Security (Scotland) Act states that, when exercising its pre-legislative scrutiny function, the Commission must have regard to any relevant human rights instrument ratified by the UK. In common with our previous report on the draft DACYP Regulations, our focus here is on the most relevant provisions of the Convention on the Rights of the Child. The Convention on the Rights of Persons with Disabilities also contains a number of relevant provisions. We are also required to have regard to the Scottish social security principles. In practice, the requirements/objectives of human rights law and the principles overlap to a significant extent.

As we stated in our DACYP report, and as recognised by both the WHO guidelines and primary legislation, disabled children’s enjoyment of the highest attainable standard of health can involve households spending extra on heating.  To fulfil the right to an adequate standard of living, the state may need to provide support with these additional costs where households face difficulty doing so themselves.  CWHA is a step towards meeting these rights. In doing so, it can be portrayed as an enhancement of the child’s right to benefit from social security and an example of the Scottish Government prioritising the best interests and “recognising the special needs” of disabled children.

Correspondingly, CWHA is likely to contribute to the realisation of several of the social security principles, including by ensuring social security contributes to the realisation of other rights in line with principle (b). By providing extra financial resources to households including disabled children, who are disproportionately likely to experience fuel poverty and other forms of poverty, it can be expected to reduce levels of both low income poverty and material deprivation in line with principle (e) and the statutory targets. It can also be argued that providing additional support to a vulnerable group is in the interests of those who have been identified as requiring assistance and can help them feel their dignity is protected by making a contribution towards income adequacy, in line with principles (d) and (g).

Non-discrimination provisions appear in multiple human rights agreements and it is well established that disability falls within this protection even when not explicitly listed as a prohibited ground for discrimination. Principle (g) also requires improvement of the Scottish social security system in ways that advance equality and non-discrimination. The absence of formal discrimination against disabled people is not sufficient to comply with the non-discrimination provisions. Special measures may be required to eliminate substantive discrimination, enabling people with impairments to participate in society and enjoy their other rights on equal terms with others.

However, the approach embodied by these draft Regulations creates some differences of treatment that may require justification. The targeting of CWHA at children in receipt of the highest rate care component of DLA excludes both children in receipt of DLA at lower rates and households in which only an adult is disabled. Yet such households with a disabled person are also disproportionately likely to be fuel poor and to contain poor children as per the Fuel Poverty (Targets, Definition and Strategy) (Scotland) Act 2019. This issue is explored further in our report. Social security principle (g) on the advancement of equality and non-discrimination may be relevant to consider here.

Principle (h) states that the Scottish social security system should be efficient and deliver value for money. The Scottish Government’s explanation that it is targeting support at households in which children are known to require care at night – so that warmer temperatures are required for longer periods – seems to speak to this principle. However, it is always important to reflect on whether efficiency and value for money are achieved at the expense of fairness.

Children have a right to express their views on matters affecting them and to be heard in administrative proceedings, while disabled people in general have a comparable right to an environment that facilitates their participation in public affairs. This falls within the requirement of principle (f) that the social security system should be designed with the people of Scotland. It has implications for the policy development process, which ought to provide opportunities for input from disabled children themselves, and not just from parents, carers and organisations or professionals speaking on their behalf.

In the Children’s rights and wellbeing impact assessment (CRWIA), the Scottish Government states that direct consultation with children and young people on the development of these Regulations was not possible due to COVID-19. This is undoubtedly true. However, the policy reflected in the current regulations was developed alongside policy for Child Disability Payment, long before Covid-19 was an issue. The intent is essentially unchanged from that embodied by Part 6 of the DACYP Regulations, prior to which there was no equivalent obstacle to involving children in policy development. While the Scottish Government has informed the Commission that some engagement with children and young people and their families took place in the development of policy on CDP, we have not seen any document setting out how this process informed the development of policy on CDP in general or CWHA in particular. Indeed, the CRWIA for CDP makes no mention of direct involvement of children and young people in its development. In line with the Lundy model of child participation,  it is important that children and young people are not only consulted, but have a genuine influence and are seen to have an influence on policy decisions affecting them.

Recommendation 2: The Scottish Government should ensure that the voices of children and young people inform the development of assistance that affects them and that their views inform the future implementation and evaluation of the CWHA.