Draft Carer’s Assistance (Carer Support Payment) (Scotland) Regulations: update for SCoSS

Background

In referring the draft Carer’s Assistance (Carer Support Payment) (Scotland) Regulations to the Commission on 03 March 2023, and the updated draft on 31 March 2023, we noted that further work was ongoing to develop a schedule to the regulations to provide more detail on the assessment of earnings, and to confirm drafting on the rules on full-time education.

Regulations updates

More information on the earnings schedule and drafting on rules on education is provided below. We have also taken the opportunity to make a number of small changes to the regulations and further information on these is also provided. We have also provided an updated version of the regulations with this note incorporating the changes set out here.

Earnings schedule

As noted in our update to the Commission on 31 March 2023, in developing the provisions for earnings assessments for Carer Support Payment, our intention is to mirror how the earnings rules work now in Carer’s Allowance, in line with our overall commitment to ensure a safe and secure transfer of benefits for those already in receipt of the benefit in Scotland. However, as previously noted, provision for assessment of earnings for Carer’s Allowance is set out in a separate set of regulations, the Social Security Benefit (Computation of Earnings) Regulations 1996, which are complex and apply across other DWP benefits which involve earnings assessments.

We therefore wanted to take some additional time to consider whether the equivalent provisions for Carer Support Payment could be simplified or streamlined to make these clearer for those using the benefit. However, our work on this has identified that it will not be possible to make significant changes while maintaining our commitment to mirror Carer’s Allowance and protect safe and secure transfer. The earnings schedule provided therefore seeks to make provision clearer wherever possible but is not significantly streamlined compared with the regulations which apply to Carer’s Allowance. We recognise that these are complex provisions, however, our view is that these are required to ensure the current earnings rules are applied consistently and fairly. We are working with colleagues in the wider Programme and Social Security Scotland to develop detailed decision making guidance to support client advisors making decisions around earnings, and plan to seek feedback on this from external stakeholders through user research.

From the launch of Carer Support Payment and on an ongoing basis we will also take feedback from carers, support organisations and Social Security Scotland staff on the operation of the provisions and earnings assessments and use this to make improvements where needed.

The provisions in the schedule set out rules for calculation of weekly amounts of earnings for both employed and self-employed individuals. They also set out rules for calculating reasonable notional earnings in circumstances where carers’ actual earnings cannot be confirmed. This would most likely occur where carers have recently taken on new work and have not yet been paid. Rules are also set out on deductions to be made to calculate an individual’s net earnings, as well as sums that may be disregarded from the calculation of earnings.

Rules on education

As discussed at our meeting, we are looking at changes to the education rules set out in the draft regulations provided on 31 March, and whether eligibility may be extended to an additional group of carers aged 16 to 19 in full-time non-advanced education who have no parental support, who responsible for a child, limited capability for work, or students who have a partner who is entitled to Universal Credit.

We are aware that the Commission will need any updated provisions on this by 18 May in order for scrutiny of these to be included in the final report on the regulations.

Additional changes

In providing updated regulations, we have taken the opportunity to make a few small changes and clarifications which we have identified are required. More information on these is provided below:

1. Correction to a reference in Regulation 2 to replace the words ‘invalid care allowance’ with Carer’s Allowance.
2. Updates at Regulations 2, 5, 19 and 23 to ensure consistency in how the qualifying benefits being paid to the person being cared for are referred to throughout the regulations. The regulations will use ‘qualifying disability benefit’ to refer to the benefits which need to be in payment to the person being cared for, for a carer to qualify for Carer Support Payment.
3. Updates at Regulation 6 (6) where spaces had been left for references relating to past presence test exceptions in some qualifying benefits. This regulation has been updated to provide that the past presence test requirement for Carer Support Payment will be disapplied where a carer is providing care for someone who is receiving Armed Forces Independence Payment or Constant Attendance Allowance (paid with a War Disablement Pension or Industrial Injuries Disablement Benefit). This will ensure that carers will be able to receive support in line with the people they are caring for, as no past presence test applies in these benefits.
4. Updates at Regulation 16(3) to make small corrections the list of overlapping benefits and to add definitions of the overlapping benefits.
5. Updates at Regulation 16(4) which provides for the eight week run on of support after the cared for person passes away. This is to ensure, for completeness that it is clear that the run on would apply only where the carer is entitled to support immediately before the death of the person being cared for, in line with Carer’s Allowance provisions.
6. Updated drafting at Regulations 18 and 19, to address the Commission’s comments about Scottish Ministers’ power to choose the start of entitlement when a carer chooses to backdate entitlement. These adjustments are intended to ensure the regulations are clearer on the intended limits to Scottish Ministers’ discretion in these circumstances so that entitlement to assistance will always begin in the award week chosen by the applicant, unless the applicant did not meet the eligibility criteria on that date, in which case the Scottish Ministers have the power to choose a later date on which the eligibility criteria were met. The updates also make the same changes to provisions for backdating to a relevant qualifying benefit decision
7. Updates at Regulation 23, which insert legislative references to the relevant DWP suspension scenarios in the provision which allows for nil-rating of Carer Support Payment.