The Carer’s Assistance (Carer Support Payment) (Scotland) Regulations 2023: scrutiny report

The Scottish Commission on Social Security's scrutiny report on the draft Carer’s Assistance (Carer Support Payment) (Scotland) Regulations 2023

3. Policy changes from Carer’s Allowance

From its launch, the rules for CSP are mostly intended to mirror CA. This is to allow the Scottish Government to transfer CA awards of people in Scotland safely and securely from the Department for Work and Pensions (DWP) to Social Security Scotland. Having the same rules also avoids creating a two-tier system where carers still getting CA are treated differently from people who have already transferred or have newly applied for CSP.

The Commission is clear that good operational delivery that gives people confidence in the continuity of their payments and can effectively administer new claims is critical. Changing the rules too much before the transfer is completed could risk undermining delivery with detrimental consequences for carers. Despite this overriding focus on safe and secure transfer, there will be some significant changes from CA when CSP is introduced:

  • Changing the terminology from “severely disabled person” to “cared for person” to refer to the individual who is being cared for.
  • Extending entitlement to students aged 20 or over in full-time education – currently only part-time students are eligible for CA. There is also a more limited extension for students aged 16 to 19.
  • Reducing the past presence test to allow carers moving to the UK to claim after 6 months instead of the current 2 years.
  • Introducing a £0 award in certain circumstances to reduce the need to make a fresh claim e.g. when earnings go above the earnings limit.

We consider these immediate changes below. We look at proposals for later changes in section 7 of this report.

There is a change in the term used to describe the person being provided with care. For CA, the term is “severely disabled person”.1Section 70(2): For CSP, the term is “cared for person” (draft regulation 2). Although the name is different, the definition is essentially the same – someone to whom a qualifying disability benefit2Qualifying disability benefits are the daily living component of Adult Disability Payment and Personal Independence Payment, the middle or higher rate care component of Child Disability Payment and Disability Living Allowance, Attendance Allowance, Armed Forces Independence Payment and certain rates of Constant Attendance Allowance is payable – so in practice there is no change to eligibility.

The Scottish Government considers the term cared for person to be a clearer and more straightforward way to refer to the individual in respect of whom the care is provided and the disability benefit is payable.3Scottish Government response to SCoSS question (response received 18 April 2023)

A majority of stakeholders told SCoSS that they preferred the term “cared for person”, including 97% of carers polled by the National Carer Organisations.4National Carer Organisations response to SCoSS call for evidence, May 2023

“This is a more up to date term which is more reflective of the diverse range of conditions people receiving care might live with, whereas “severely disabled” is somewhat more limited in scope and may not align with how either the cared for person views themselves or how the unpaid carer sees their role.”5Health and Social Care Alliance response to SCoSS call for evidence, May 2023

However, some stakeholders felt there could be better alternatives. The Experts by Experience Panel of the Poverty and Inequality Commission expressed the view that “cared for person” “attuned to a medical model and was not demonstrating an equal power relationship in the caring relationship.” They suggested that “person with high support needs” or “person you care for” may be better alternatives.

Overall, we consider the term to be an improvement which reflects the Charter commitment to “introduce more positive words to describe the service and the people who use it”.6 Our Charter, Part 4, Expectation 7: ”Change the language on social security – introducing more positive words to describe the service and the people who use it”

Full-time students are not eligible for CA. The DWP’s rationale for excluding them is that young people who stay in full-time, non-advanced education are dependent on their parents who can continue to claim benefit for them, and older students and those in higher education should seek mainstream student grants and loans.13 Any payment of CA would duplicate this provision.

Stakeholders have long held the view that this limits carers’ ability to develop their skills, employment opportunities and a life away from their caring responsibilities.

“The current rule limits unpaid carers’ ability to live their own life alongside caring and is a barrier for them progressing their own education or future employment aspirations.”14

The Scottish Government has decided to widen entitlement from the launch of CSP for all students over 20 and for some students aged 16 to 19.

Students aged 20 or over will be eligible regardless of hours of study or level of course. Students aged 16 to 19 will be eligible if they are in advanced education (e.g. degree level) regardless of hours of study. There is more limited widening of entitlement for students aged 16 to 19 in non-advanced education. They will be eligible for CSP, as they would be for CA, if they study on a course up to 21 hours a week. But they will not be eligible if they study full time, with very limited exceptions for some young people whose circumstances mean they could potentially claim Universal Credit.

The widening of access to students is welcome. There is evidence that the prospect of losing regular benefit income such as CA is a barrier to carers entering education. During the public consultation exercise, Parkinson’s UK Scotland15 noted that “many unpaid carers have to leave education because they cannot afford to maintain their studies and caring responsibilities without paid employment” and Engender said that the rules “undermine women’s earning potential.”16

Reducing this barrier should enable more carers to study and advance their employment prospects. Particularly for students over 20, this could, therefore, be seen as ‘an investment in the people of Scotland’ (principle (a)) and is likely to ‘advance equality’ for women who are more likely than men to be carers receiving CA (principle (g)(ii)).1769% of people who get Carer’s Allowance are women; It has been widely welcomed by stakeholders, including a focus group of young carers held by the National Carer Organisations who said this was “a positive change in the right direction.”18National Carer Organisations response to SCoSS call for evidence, May 2023

Observation 1: We welcome the widening of access to many students who will now be able to keep Carer Support Payment when they would previously have faced a choice of either keeping Carer’s Allowance or taking up opportunities for full-time study.

There is limited widening of access for young people aged 16 to 19 in non-advanced education. They will be eligible for CSP if studying up to 21 hours a week as for CA. Young people studying more than 21 hours a week will be eligible for CSP if they are in particular situations. These are designed to match the circumstances in which young people could claim Universal Credit in their own right.

  • They are estranged from their parents, or at risk if they live with their parents, or have no parental support because, for example, parents have died or cannot enter the UK.
  • They have responsibility for a child.
  • They are disabled themselves and before their course starts have been assessed by the DWP as having limited capacity for work.
  • They are a foster parent.
  • They are in a couple and their partner is not a student, or both are students and the partner is in one of the above situations too.

Most young carers under 20 in full-time, non-advanced education will not have access to CSP. The Scottish Government has said it wants to get the balance right between providing support and not incentivising or normalising young people taking on a large caring role alongside their school-level education.25Scottish Carer’s Assistance consultation:

For older students who already get benefit, the prospect of losing it could be a barrier to undertaking education. But the situation is different for young people. Where parents claim Child Benefit or UC child element for them, benefit continues while the young person remains in full-time, non-advanced education. Therefore, if the goal is supporting young people to exercise their right to education, widening access to CSP may be less likely to reduce barriers to young people entering education than is the case for older carers. If the goal is to avoid incentivising young people to take on a larger caring role which could itself become a barrier to them exercising their right to education, this is a plausible risk but there is a lack of evidence, and carers themselves assert the contrary.

The latest figures show that at least 30,000 young carers live in Scotland.26,carers%20living%20in%20Scotland%2C%20including%2030%2C000%20young%20carers. Carers Trust Scotland notes that young carers struggle to juggle their education and caring responsibilities which can cause pressure and stress.27,recorded%20across%20schools%20in%20Scotland%20is%20significantly%20lower. The Commission sought views from carers about the continued exclusion of young carers in full-time, non-advanced education. They told us that they were in favour of widening access to this group. They did not see caring as a choice and did not think that young carers would spend more time caring in order to get benefit. They thought it unfair that young people who were less academic would be excluded.

“Not getting Carer’s Allowance would put some young people off education. It’s only that extra bit of support that means they can have any sort of independence.”

“For most young people this is not a choice they have. They haven’t been asked to take on a caring role and it’s not a life decision they’ve made. It just happened to them.”

“We have to protect young people taking on caring roles, but not letting young people follow the same rules feels discriminatory against them.”28Participants at SCoSS carers event, 4 May 2023

Stakeholder organisations thought that excluding non-advanced courses could disincentivise learning opportunities for carers and could lead to some carers moving from non-advanced education “to destinations that are not positive, such as becoming unemployed”29Experts by Experience Panel of the Poverty and Inequality Commission response to SCoSS call for evidence, May 2023 or to “leave school earlier in order to benefit from a more flexible timetable at college, whether this be part-time or full-time.”30National Carer Organisations response to SCoSS call for evidence, May 2023

“(Young carers) are reliant on having the right family arrangements that allow them to go to classes. Otherwise they can’t. They are more likely to be able to do this with additional resources.”31Participant at SCoSS carers event, 4 May 2023

Some stakeholders thought that it was outdated to think that full time caring roles were incompatible with study. SCoSS also heard from academics who highlighted that young carers are often adept at arranging their own times and schedules to balance study and caring.32Academic comment at SCoSS roundtable, 30 March 2023

However, there was a view that carers are less likely to be able to combine caring and study and paid work. Many students need to work to supplement their student income. One young carer in a focus group held by National Carer Organisations said that they had taken on a part-time job in their final year at school which “has been difficult for them to manage alongside caring and greater financial support would be welcome.”33National Carer Organisations response to SCoSS call for evidence, May 2023 Young carers could therefore be disadvantaged compared to their peers which could be addressed by allowing them to access CSP to supplement student income in place of work.

There appears to be a lack of evidence on the effect that access to benefit for young carers has on their caring and education choices and outcomes. This should be addressed in order to inform policy decisions.

Recommendation 3: To ensure its policy on carers aged 16 to 19 is designed on the basis of good evidence, the Scottish Government should undertake research on the relationship between access to benefit for young carers, incentives to take on larger caring roles and the impact on remaining in education.

Notwithstanding whether access to CSP might be a barrier or enabler for young people in education, lack of access for one group introduces additional complexity.

A coalition of third sector organisations wrote to the Scottish Government in February 2023 arguing that excluding young carers in non-advanced education from CSP risks creating additional complexity.

“We know that young carers are often unsure whether they will be able to get carer’s allowance when they start, or return to, studying. Removing the full-time study rules entirely is the only way to get rid of this uncertainty and complexity.”43Letter from a coalition of carer organisations and welfare rights bodies to the Minister for Social Security and Local Government, 9 February 2023

It would be simpler to treat 16 to 19-year-olds the same as older carers. Complexity means lower take up of benefit entitlement, more mistakes in decision making and more mistakes in individuals reporting relevant changes in circumstances. If the research we have recommended were to show that concerns about incentivising young people to take on larger caring roles were unfounded, it would be better to open access to CSP to this group. In the meantime, the Scottish Government should take measures to reduce complexity where possible and to mitigate it where it is not possible.

Recommendation 4: If research finds that carer benefits do not incentivise young people to take on larger caring roles, the Scottish Government should consider widening access to carers aged 16 to 19 in full-time non-advanced education.

Young Carer Grant (YCG) is available to young people aged 16 to 18. CSP will not be available to most young people in non-advanced education until the age of 20. Therefore most 19-year-olds will not have access to YCG or CSP. There are two obvious ways to address this: remove the age 19 exclusion from CSP or extend YCG entitlement to age 19. We understand that the Scottish Government intends to consider interactions with YCG further as part of a future change programme for CSP. SCoSS considers that with a relatively small investment, this gap between YCG and CSP could be filled by extending entitlement to YCG for 19-year-olds.

Recommendation 5: The Scottish Government should consider extending Young Carer Grant to include 19-year-olds in non-advanced education who are not eligible for Carer Support Payment in order to address the eligibility gap for this age group from launch.

Eligibility for CA depends on having been in the UK or Ireland for at least 104 weeks out of the last 156. This is in line with Personal Independence Payment which has the same two-year past presence test. The past presence test for Child Disability Payment and Adult Disability Payment was reduced to 26 weeks. Consequently, the CSP past presence test will also be reduced to 26 weeks (draft regulation 6(1)(e)). We welcome this change. It aligns the past presence test for a carer with the person they care for so if they were to come to the UK together, they could access benefit at the same time. It also improves the position for other carers coming to the UK.

Draft regulation 23(2) provides for an ongoing award of CSP to be set to £0 for up to 26 weeks where:

  • The carer’s earnings go over the earnings limit
  • The cared for person’s qualifying disability benefit is reduced to £0
  • The carer has had a break in care of more than the permitted 4 or 12 weeks.

Currently, in CA, entitlement would simply end at this point. The carer would need to reapply when their circumstances changed. In the new system, carers whose CSP award has been set to £0 will not need to reapply within the 26-week period if earnings go down or the disability benefit payment resumes or the break in care ends. They will have a simpler process to report a change of circumstances online (using the change of circumstances form), by telephone, or using a paper form.

This is an improvement which has the potential to increase take-up of CSP, in line with charter expectations,45Our Charter, Part 4, Expectation 4: “Improve take-up, ensuring as many people as possible get what they are entitled to, making a particular effort to reach people who are most likely to be excluded. and could be of particular benefit to carers in work with fluctuating earnings or those managing patterns of respite care.

The introduction of nil awards in these circumstances was supported by the majority of unpaid carers (99%) polled as part of the National Carer Organisations response to SCoSS.46National Carer Organisations response to SCoSS call for evidence, May 2023

However, there are some issues with the regulation as drafted. We look at these issues in sections 3.4.1 to 3.4.4 below including the relationship between this provision and the other situation in which CSP is paid at a £0 rate – when there is entitlement to an overlapping benefit.

Draft regulation 23(1)(a) sets CSP to £0 when two conditions are met: (1) earnings exceed the limit and (2) there is ongoing entitlement to CSP. However, according to draft regulation 14, an individual is not entitled to CSP at all in any week in which their earnings exceed the limit which suggests that the condition that there is ongoing entitlement is not and cannot be met. This seeming contradiction may not be compatible as drafted with the enabling powers in the Social Security (Scotland) Act 2018. Section 50 provides for a determination of entitlement to consist of a decision about whether eligibility rules are satisfied, and if they are satisfied then a decision about what assistance to give. A decision to give assistance at a nil rate (presuming eligibility rules are satisfied) is permitted elsewhere in the Act,49Schedule 2, para 11A(2): Social Security (Scotland) Act 2018 so in theory regulations could be drafted to avoid any seeming contradiction.

Recommendation 6: We welcome the provision to set Carer Support Payment to £0 when earnings are over the limit. However, the Scottish Government should consider redrafting it to avoid any potential incompatibility with enabling powers or contradictions within the regulations.

Draft regulation 23(1)(b)(i) sets CSP to £0 when the cared for person’s qualifying disability benefit is ‘reduced to £0’. This wording is used in Scottish benefits, Child Disability Payment and Adult Disability Payment. CDP care component and ADP daily living component are ‘reduced to £0’, for example, after 28 days in a care home. However, regulations for UK benefits use different wording. They are ‘not payable’ in these circumstances. Although benefit being ‘not payable’ or ‘reduced to £0’ is not different in practice, the CSP regulations do not clearly and unambiguously refer to the specific situations intended to be covered. This could result in the law not being completely clear in some situations, for example, being remanded in custody, in which the rules on paying benefit differ between benefits.51Prison and benefits factsheet:

When an individual gets a backdated award of Child Disability Payment or Adult Disability Payment after a redetermination or appeal, the payment for that backdated period is reduced to £0 if an individual was getting Short-term Assistance at the same or a higher level. This is to avoid double payment.53 For example, see Schedule 2, para 4: In this situation, a carer can apply for CSP for the backdated period of the CDP or ADP award. This is provided for in draft regulation 19. Because there is no ongoing CSP entitlement during the redetermination or appeal, we assume that regulation 23(1)(b)(i) would not apply to reduce CSP to £0 despite the fact of there being a £0 award of the qualifying benefit. However, the potential for confusion does strengthen the case for this rule being tied in more explicitly to the situations it is intended to cover to avoid carers inadvertently losing CSP payment.

Recommendation 7: To avoid the potential for confusion, the Scottish Government considers setting out in draft regulation 23 the situations in which a nil award of a qualifying disability benefit is intended to result in CSP being set to £0.

There is another important situation in which the amount of the CSP award is £0. That is where the carer is entitled to another ‘overlapping benefit’. These are listed in draft regulation 16. The most common is State Pension. We comment more on this in section 6.1 of the report below. Here we focus just on the consequence of paying CSP at £0 when there is an overlapping benefit entitlement, and also paying CSP at £0 when someone (temporarily) stops qualifying (e.g., when earnings are over the limit). There is a critical difference between the two types of £0 award.

  • An overlapping benefit £0 CSP award gives entitlement to extra amounts in other means-tested benefits such as Pension Credit, Housing Benefit and Income Support, qualifies the carer for a Christmas bonus and exemption from the benefit cap. These are often referred to as ‘passported benefits’.
  • A £0 CSP award when someone stops qualifying because of earnings or breaks in care, for example, does not generally give entitlement to passported benefits. An important exception is that a Universal Credit carer element continues despite earnings being over the limit.

Through the Scottish Government’s consultation process and in our call for evidence, stakeholders have said that paying CSP at £0 in different circumstances could confuse carers and risk them missing out on passported benefits.

“It is not clear that the claimant (nor indeed Social Security Scotland staff or advisers) would be able to tell the reason for the £0 payment, whether it was for one or both of the reasons. This would make it hard to know if the carer should be entitled to any additional support.”55CPAG in Scotland response to SCoSS call for evidence, May 2023

As an example of the potential for confusion, a carer aged 66 may have their CSP award set to £0 under draft regulation 23 because of earnings. Then they start to get a State Pension. Is their CSP award still £0 under draft regulation 23 or is it now set to £0 under the overlapping benefit provision in draft regulation 16? For CA, in these circumstances, a carer would simply not be entitled if earnings were over the limit.

Recommendation 8: Regulations must clearly set out when one or another of the nil award provisions applies when a carer falls into more than one category. Award notices must also clearly set out which category the nil award comes under and explain to carers what the consequences of that are for their passported entitlement.

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