- Document Cover
- Summary of recommendations and observations
- Executive summary
- 1. Introduction
- 2. Aims of Carer Support Payment
- 3. Policy changes from Carer’s Allowance
- 4. Employment and earnings
- 5. Carer’s Allowance Supplement
- 6. Older carers
- 7. Future Changes
- 8. Regulations: areas for clarification
- 9. Approach to scrutiny
- Annexe A: External stakeholders
- Annexe B: Scrutiny timeline
- Annexe C: About the Scottish Commission on Social Security
8. Regulations: areas for clarification
“Couple” and “partner”. “Couple” is defined as a married or an unmarried couple, and “partner” is someone in a married or unmarried couple (draft regulation 2). We note two changes to these definitions that we believe are needed.
- They should include couples who are civil partners.
- They should be restricted to couples who live together or share a household.
Section 39 of the Welfare Reform Act 2012 uses the definition, which was subsequently also used in the Social Security (Scotland) Act 2018.
“two people who are married to, or civil partners of, each other and are members of the same household; or two people who are not married to, or civil partners of, each other but are living together as if they were a married couple or civil partner.”1Section 39: https://www.legislation.gov.uk/ukpga/2012/5/section/39/enacted
The definitions relate to the rule in draft regulation 17 (abatement in respect of a relevant benefit) which is intended to avoid duplicating payments when arrears of CSP are due and an individual or their partner has received a UK means-tested benefit such as Income Support for the period covered by the arrears. In this situation, couples must be living together or sharing a household to claim benefit as a couple. If they do not cohabit, they are not a ‘couple’ and CSP for one partner is not be deducted as income from the means-tested benefit of the other partner and there would be no duplication of payment when arrears are due.
Recommendation 18: The definitions of “couple” and “partner” in draft regulation 2 should be amended to reflect the definition used in the Welfare Reform Act 2012 and the Social Security (Scotland) Act 2018.
“Qualifying disability benefit”. The definition in draft regulation 2 includes reference to “the middle or highest care rate” of Child Disability Payment and Disability Living Allowance. The ‘care rate’ is not a strictly accurate legal term. It should refer to a ‘care component’.2For example, as in regulation 11 of The Disability Assistance for Children and Young People (Scotland) Regulations 2021 (www.legislation.gov.uk)
Recommendation 19: The Scottish Government should amend references to the “care rate” of Child Disability Payment and Disability Living Allowance to refer to “the care component” of these benefits at the middle or highest rate.
A number of social security benefits are referred to in the draft regulations as qualifying disability benefits (draft regulation 2) or overlapping with CSP (draft regulation 16). Most of these are defined, however, there are some that are not e.g. Attendance Allowance, Constant Attendance Allowance, Armed Forces Independence Payment, Retirement Pension, Young Carer Grant. The inclusion of a definition would be desirable for clarity.
Recommendation 20: The Scottish Government should ensure that the draft regulations include all required definitions of qualifying benefits and overlapping benefits.
To get Young Carer Grant (YCG), young carers need to be caring for an average of 16 hours a week, and this care can be for more than one person. In general, it is aimed at young carers with less intensive caring roles who would not be eligible for CSP which requires care for over 35 hours a week for one cared for person. However, leaving full-time education or a changing caring role can mean that a young carer who got YCG may become eligible for CSP or the other way round, or they may not realise they are eligible for CSP until they have already received a YCG. The rules are intended to accommodate these situations.
The policy intention3Scottish Government response to SCoSS question (response received May 2023) is that:
- They could get CSP after having had a YCG – this includes applications for CSP made in the same year as the grant.
- They could get YCG after an award of CSP has ended, as long as they were not getting CSP during the 13-week qualifying period for YCG.
- They would not be able to get YCG if they are receiving CSP – this includes when the YCG application is in respect of care provided to a different person than the cared for person named on their CSP award.
This is complicated. Young carers should be able to claim everything they are entitled to. The complexity in the rules may in this case be justified, to avoid duplicating benefit. But the regulations could more clearly express the rules.
For the first scenario – applying for CSP after having had a grant – the policy intention to allow CSP applications in the same year as the grant is clearly expressed in draft regulation 12(2) when the same cared for person is involved but could be more clearly expressed in regulation 12(1) where a different cared for person is involved.
For the second scenario – applying for YCG after a CSP award has ended – the draft regulations do not seem to meet the policy intention to permit a YCG application as long as the CSP award ended before the start of the YCG 13-week qualifying period. The YCG Regulations seem to require the CSP award to have ended before “the day their [YCG] application is made” which is after the 13-week qualifying period.4Regulations 5 and 7(1): https://www.legislation.gov.uk/ssi/2019/324/made
For the third scenario – not permitting a YCG application while getting CSP – this policy intention is clarified by an amendment to the YCG regulations5https://www.legislation.gov.uk/ssi/2019/324/made para 9 of the Schedule to the draft regulations). We note that there may be a typo in this amendment which amends regulation 7(2) of the YCG regulations when it would appear to be regulation 7(1) that is intended.
Of course, guidance and communications to individuals, decision makers and advisers must be completely clear.
Recommendation 21: Regulations for Young Carer Grant and Carer Support Payment about moving from one of these benefits to the other should be more clearly and accurately expressed to meet the policy intention.
Young people aged 16 to 19 in ‘approved training’ are not eligible for CSP. The definition of approved training in draft regulation 13(5) largely mirrors the Child Benefit definition.6Regulation 1, The Child Benefit (General) Regulations 2006 (legislation.gov.uk) We are grateful to CPAG for pointing out that the Child Benefit definition was amended in March 2023 to remove ‘Employability Fund activity’.7https://www.legislation.gov.uk/uksi/2023/179/contents/made If this activity has ended it should be removed from the CSP regulation for clarity.
Recommendation 22: If Employability Fund activity is no longer operational, regulation 13(5) should be amended to remove it from the definition of approved training.
The earliest entitlement to CSP can start is the 16th birthday (draft regulation 4). Until recently, this was the same as the CA rule. However, the CA rule has changed from 16 to minimum school leaving age. Case law has held that the law makers who set the age limit for CA at 16 intended it to align with minimum school leaving age.8https://www.legislation.gov.uk/uksi/2023/179/contents/made School leaving age changed after the law was passed. The case law decided that the reference in the legislation to age 16 should be treated as a reference to minimum school leaving age to give effect to what the UK Parliament intended. The result is that for CA, in law the earliest you can claim in Scotland is your school leaving date of either 31 May or the beginning of the Christmas holidays. In England it is the last Friday in June.
In practical terms, if the age limit remains at the 16th birthday, this could mean that young people who are more flexibly home educated and may sometimes not be classed as being in ‘full-time education’ may qualify while young people educated in school may not qualify. It would seem to be fairer, albeit more complex, to set the age limit at school leaving age, however more consideration is needed of whether there are any other situations when a young person is not in formal schooling.
Recommendation 23: The Scottish Government makes its intention explicit regarding whether the lower age limit for Carer Support Payment is intended to be the 16th birthday or the minimum school leaving age.
CSP is taken into account as income for means-tested benefits such as Universal Credit, Pension Credit and Income Support. These benefits are reduced pound for pound by the amount of CSP paid. When a carer gets backdated CSP, which commonly happens on a first application or after an award of a qualifying disability benefit, the backdated award is taken into account as income for any means-tested benefit paid for the same period. If the arrears were to be paid in full, that would mean a duplication of payment for the same period and the individual having to repay the overpayment of benefit. There is an internal offsetting process to transfer arrears to cover any overpayment, and then paying the individual what is left. This process of offsetting arrears is called ‘abatement’.
Draft regulation 17 is intended to replicate the abatement process used internally within the Department for Work and Pensions (DWP) to allow Social Security Scotland to pay arrears of CSP directly to the DWP, with the consent of the individual. It applies to Pension Credit and legacy means-tested benefits but not to Universal Credit. However, most carers in this situation will be getting UC. When arrears of CSP result in an overpayment of UC, the DWP will recover it through deductions from the monthly UC award, rather than offsetting or abating the amount as is the case for legacy benefits.
We welcome the inclusion of an abatement process in CSP. It is a process that reduces complexity for carers. Making processes as simple as possible is a commitment to people in Our Charter.9 Our Charter, Part 2, Expectation 1: ”Make communications, processes and systems as simple and clear as possible by testing them with the people who will use them.” However, it would be more useful if it also applied to UC.
Although the DWP does not use the abatement process in UC, it has the statutory power to do so.10Section 74(2): https://www.legislation.gov.uk/ukpga/1992/5/contents/enacted The Scottish Government has chosen to mirror the DWP’s practice rather than their statutory powers in this case. They have said that if the DWP decides in future to put in place an abatement process for UC, the Scottish Government will consider amending CSP regulations at that point.11Scottish Government response to SCoSS question (response received April 2023) We accept that it is not a simple matter for the DWP to introduce this process for UC and it may not be efficient or value for money to do so for cases in Scotland alone.
We note a technical issue with draft regulation 17. The draft regulations referred to SCoSS did not calculate correctly the amount of CSP to be given to the DWP. We are pleased to note that the Scottish Government has amended the draft following exchanges between SCoSS and officials. The formula is essentially to take the weekly entitlement to the means-tested benefit before the start of the CSP award and deduct from it the lower weekly amount of the means-tested benefit entitlement when CSP is in payment (it is lower because CSP is deducted pound for pound even though there is an additional carer premium included). Then multiply the result for the number of weeks covered by the CSP arrears. As drafted, the regulation would seem to produce a correct result in most cases. Where it will produce an incorrect result is when other changes that affect the amount of means-tested benefit happen during the abatement period, such as a couple separating, or benefit rates being uprated. Therefore, there will be cases where the calculation would result in the individual getting too little and the DWP getting too much of the arrears. In practice, Social Security Scotland will rely on the calculation provided by the DWP of the amount by which the arrears of CSP should be reduced, based on the amount of means-tested benefit overpaid in the abatement period. However, the CSP regulations should be framed so as to accurately produce the same result.
Recommendation 24: The provision in draft regulation 17 to avoid duplicating payments to carers by offsetting arrears of Carer Support Payment against means-tested benefits paid for the same period should be amended to provide an accurate amount to offset taking account of changes during the abatement period.
The existing CA system allows for a right to backdate a claim for up to three months to a date chosen by the claimant as long as entitlement is established on that date. For CSP, the policy intention is also that the carer will select the start date on their application and Social Security Scotland will align the chosen date with the start of the award week after entitlement from that date has been checked. Draft regulation 18 in the version sent to SCoSS for scrutiny was not completely aligned with the policy intention in that the selection of the start date was wholly at the discretion of Scottish Ministers. A similar provision allows for further backdating of CSP after an award of a qualifying disability benefit (to the start date of the qualifying benefit). We are pleased that the Scottish Government has considered changing the drafting of regulations 18 and 19 to introduce express safeguards for individuals.
We would also suggest that processes allow for individuals to ask for backdating of CSP after their application has been determined. This can happen, for example, when carers have applied for benefit before getting welfare rights advice about maximising their entitlement.
Recommendation 25: The Scottish Government should include safeguards to ensure that backdating of Carer Support Payment is a right rather than being at the discretion of Scottish Ministers, with an appropriate degree of flexibility to allow for eligibility requirements being met and alignment with set award weeks.
We note two further issues with the wording of draft regulation 19 which provides for backdating of CSP after an award of a qualifying disability benefit. Officials have told SCoSS in each case that they plan to change the drafting accordingly.
- To ensure that CSP is backdated to the point at which the disability benefit entitlement begins, rather than the point at which the decision in respect of the disability benefit is made.
- To include reference to the Department for Communities in Northern Ireland. There are probably limited situations where a carer resident in Scotland would be caring for someone resident in Northern Ireland but there could be carers who visit weekly or remain ordinarily resident in Scotland while caring in Northern Ireland.
Recommendation 26: The Scottish Government ensures that regulation 19 provides that an application for Carer Support Payment, made after a decision on a qualifying benefit, is backdated to the point at which the disability benefit entitlement begins rather than when the decision on disability benefit is made. It should also provide for decisions made by the Department for Communities in Northern Ireland.
We identified two technical issues with the wording of draft regulation 16 which officials have told SCoSS they plan to amend. We include them in this report for completeness.
In the provision of an 8-week run of CSP after the cared for person dies, draft regulation 16(4)(a) ends the award before 8 weeks if the carer stops meeting eligibility conditions other than the requirement to be providing care, for example if they started work and earned over the limit in that period. In the version of the draft regulations sent to SCoSS for scrutiny, regulation 16(4)(a) refers to ‘any other eligibility requirement set out in Part 3 of these Regulations’ which does not set out clearly which requirements this refers to. Officials have told us that they plan to amend the regulations.
Recommendation 27: Draft regulation 16(4)(a) should be amended to clarify the eligibility requirements which must continue to be satisfied by a carer following the death of a cared for person.
Draft regulation 16(3)(k) refers to “Contributory Employment and Support Allowance and Training Allowance”, however these are separate benefits and the draft regulations should be amended to reflect this.
Recommendation 28: Draft regulation 16(3)(k) should be amended to separate Training Allowance and Contributory Employment and Support Allowance.
Two people cannot receive CSP where they are both caring for the same person. Nor can a carer get CSP if someone else is already getting CA or the carer element of Universal Credit for the same cared for person (draft regulation 5). Draft regulation 24 applies to work out who should be entitled when more than one person tries to claim. In CA, these are referred to as “rival carer” situations. This situation may arise in difficult family situations such as when couples separate and share care for a disabled child or simply due to a misunderstanding of the rules. The intention is that the same exclusion will apply across Scottish and UK carer benefits so that only one carer will be able to get CSP or CA or the UC carer element for the same cared for person. Amendments to UK social security legislation will be needed to bring this about.
The overall policy aim, where two carers are eligible for support, is to ensure that carers are supported to come to a decision themselves on which of them should receive benefits and are equipped with access to information on income maximisation to help them to do so. This seems the right approach and is consistent with the principle of respecting the dignity of the individual carers involved. Where multiple carers both seeking CSP cannot agree, draft regulation 24 passes the decision to Social Security Scotland.
Draft regulation 24 is made under powers in the Social Security (Scotland) Act 2018 which relate to multiple carers’ eligibility for CSP – not multiple carers involving CA or UC carer element which in any case Scottish Ministers would have no jurisdiction over.12Para 4, Schedule 2, Social Security (Scotland) Act 2018 (www.legislation.gov.uk) As drafted, reg 24(2) refers to multiple carers for all three benefits. The drafting could be clearer on the scope of this provision.
The Act says that regulations may make an individual’s eligibility depend on being “selected through a process set out in the regulations in a case where more than one individual would otherwise be eligible”. The process set out in regulation 24 is ‘first come, first served’ if two applications are received and neither has yet been awarded. If CSP is already in payment to one carer, regulation 24 allows a check on their eligibility with the potential to remove the award if they no longer meet the criteria. However, if both carers meet the criteria, regulations do not clearly permit an existing award to be removed without the agreement of the recipient. This policy intention would need to be set out explicitly in regulations and should include a right of appeal for the individual. In these cases, discretionary factors are likely to be relevant to decide who is the main carer. The views of the cared for person should be taken into account where possible. The choice of carer could impact on a disabled person’s right to live independently.13Article 19 of the United Nations Convention on the Rights of Persons with Disability: https://social.desa.un.org/issues/disability/crpd/article-19-living-independently-and-being-included-in-the-community
The Scottish Government has said that they are discussing with the DWP the potential for cross-border “rival carer” situations and the need for consistency between Social Security Scotland’s approach and the DWP’s. However, a more common situation will be carers who both live in Scotland, one of whom gets Universal Credit carer element or has yet to be transferred from CA. In other words, not cross-border, but cross-jurisdiction cases between Social Security Scotland and the DWP. A challenging degree of systems and processes will be needed to adjudicate fairly and clearly between claims in these situations.
Recommendation 29: In deciding between claims to Carer Support Payment from “rival carers”, the views of the disabled person whose care is involved should be sought where possible.
Recommendation 30: The Scottish Government should work with the DWP to develop systems to adjudicate fairly and effectively between “rival carer “claims and entitlements to Carer Support Payment, Carer’s Allowance and Universal Credit carer element.
Recommendation 31: Regulations should make clear the scope of the multiple applications rule, the provisions for removing entitlement and the right of appeal.