The Welfare Foods (Best Start Foods) (Scotland) Amendment Regulations 2024: scrutiny report

The Scottish Commission on Social Security's scrutiny report on the draft Welfare Foods (Best Start Foods) (Scotland) Amendment Regulations 2024

2. Qualifying benefits for Best Start Foods

To be entitled to BSF, people who fall within the eligible categories1That is, a pregnant person, their partner, or a child under three. must normally receive, or be the partner or dependant of someone who receives, a qualifying low-income benefit from the Department for Work and Pensions or HM Revenue and Customs. The qualifying benefits are Child Tax Credit (alone or in combination with Working Tax Credit), Housing Benefit, income-based Jobseeker’s Allowance, income-related Employment and Support Allowance, Income Support, State Pension Credit and Universal Credit. At present, certain qualifying benefits are subject to income thresholds, above which there is no entitlement to BSF. The thresholds are:

  • £18,725 for Child Tax Credit
  • £8,717 for Child Tax Credit in combination with Working Tax Credit
  • £358 per week for Housing Benefit (equivalent to around £18,600)
  • £726 per month for Universal Credit (equivalent to £8,712)

This is one of a number of differences to the rules on qualifying benefits for the five family payments. Eligibility for the three BSG payments is contingent on an award of any of the same qualifying benefits as BSF, or Working Tax Credit, with no income thresholds. Eligibility for SCP is contingent on an award of the same set of qualifying benefits as BSG, except for Housing Benefit, with no income thresholds.

Draft Regulation 10(1) amends Regulation 10 of the BSF regulations to remove these income thresholds. In addition, draft Regulation 10(1)(b) establishes Working Tax Credit as a qualifying benefit in its own right, even if Child Tax Credit is not received.

The Child Rights and Wellbeing Impact Assessment (CRWIA) projects that the removal of income thresholds will extend eligibility for BSF to an additional 20,000 individuals per year. Supporting a greater number of low-income households is in keeping with principle (e), which states that “the Scottish social security system is to contribute to reducing poverty in Scotland”. Even though BSF is awarded in the form of a restricted-use, pre-paid card rather than cash, it is treated as income for the purposes of calculating the number of households or children who experience relative, absolute or persistent poverty (as defined by the Child Poverty (Scotland) Act 2017). It may also reduce the number of households experiencing material deprivation by increasing the overall resources available for essential needs.2 In doing so, the draft Regulations are likely to increase the contribution of BSF to the realisation of low-income families’ right to an adequate standard of living, including adequate food3Protected by article 27 UNCRC and article 11 ICESCR – although only by a limited amount, as they will result in a limited extension of eligibility to quite a low level of support. The Scottish Government does not publish data on the impact of BSF on child poverty rates, only on the cumulative impact of multiple policies.4

As well as increasing the pool of eligible households, the removal of income thresholds and establishment of Working Tax Credit as a qualifying benefit in its own right has potential to increase take-up, which is one of the objectives of Our Charter.5‘A Better Future’, commitment 11 Eligibility criteria will be simplified and better aligned with the three BSG payments and SCP, so that individuals should be better able to understand that they or their child is likely to be entitled. The CRWIA additionally records reports from stakeholders that individuals who lose entitlement to BSF because they temporarily exceed the income thresholds do not always re-claim when their income drops. Removal of the thresholds will not entirely eliminate this issue – entitlement will still be interrupted when, for example, household income exceeds the maximum for receipt of Universal Credit for longer than eight weeks6The Island Communities Impact Assessment notes that this may be more common in island and other remote communities with relatively high levels of seasonal employment. – but it should become less common and will typically take place at a higher income level. The effect of these changes should be to increase the simplicity and efficiency of BSF, in keeping with principle (h). They will also reduce the extent to which individuals are treated differently depending on what low income benefit(s) their household receives, in keeping with principle (f) and the broad non-discrimination provisions that are common of human rights law.7For example, article 2 of the Convention on the Rights of the Child and article 2 of the International Covenant on Economic, Social and Cultural Rights. Since most of the qualifying benefits for BSF are in the process of being combined within the umbrella of Universal Credit, it is increasingly difficult to justify applying different income thresholds or run-on rules to different benefits, or the exclusion of households that receive Working Tax Credit only.

On the other hand, there are some possible disadvantages to the removal of income thresholds. The withdrawal of the entirety of a SCP award at the point when household income rises to a level where entitlement to a qualifying benefit ends means a considerable cliff-edge loss of income – £25 per child per week – when this happens. This will increase to almost £30 per child under 3, or £35 per child under 1 (at current rates) as a result of the draft Regulations, which will cause BSF entitlement to end at the same time as SCP.

Representatives of stakeholder organisations who attended the SCoSS roundtable noted that the removal of income thresholds for qualifying benefits was a positive and overdue step. Participants stated that income thresholds are a complicating factor, can hinder take-up and may act as a disincentive to entering or progressing in paid employment due to the risk of losing support through BSF. Overall, SCoSS agrees that the removal of income thresholds is likely to be a positive change.

Draft Regulation 10(2) and (3) makes some further changes to the rules on qualifying benefits for BSF. The BSF regulations will be amended to clarify that an individual is not to be regarded as in receipt of a qualifying benefit in any week when the benefit is awarded in error or when the award is £0. The exception to this is when an award is reduced to £0 because of a sanction (when a benefit is reduced for non-compliance with conditions set by the DWP) or a deduction for repayment of a debt. These provisions appear uncontroversial and mean the BSF regulations will reflect how the scheme is already administered in practice.

Observation 2: SCoSS welcomes the proposed removal of the income thresholds that apply to qualifying benefits for Best Start Foods, which will extend eligibility to previously excluded low-income groups and has potential to improve take-up and efficiency by simplifying eligibility criteria.

The draft Regulations establish two new procedural provisions for BSF claims.15Draft Regulation 16 inserting new BSF regulations 22 and 23 The first allows for advance applications. If an individual applies for BSF at a time when they are not entitled, but becomes entitled no more than 10 days later, Social Security Scotland will be able to treat the applications as if it had been made on the day when the individual became entitled.

The second new provision concerns situations where a BSF application is initially turned down because the applicant does not receive a qualifying benefit or is not responsible for a child under three years old. If their qualifying benefit or a child responsibility benefit is awarded later – for example after a claim or appeal – and the award covers the date of the original BSF application, Social Security Scotland can then award BSF with effect from the date of application.

Similar provisions apply to both BSG and SCP (although in the case of SCP the period for an advance application is 14 days),16SSI 2020/351, Schedule paras 1(2) and 8; SSI 2018/370 Regulation 4 and schedule 1 para 5 and can be found in other Scottish benefits.17For example, SSI 2020/352 Regulation 8 (backdated awards of Child Winter Heating Assistance); SSI 2021/174 Regulation 24 (prospective applications for Child Disability Payment – up to 13 weeks in advance). These changes are positive, bringing further alignment across the five family payments, reducing the administrative burden on applicants and potentially improving take-up as fewer people should miss out on awards because their initial application is unsuccessful and they fail to submit a new application when they meet the conditions of entitlement. Consequently, the new provisions should improve the operation of BSF so that processes become more efficient from the applicant’s point of view and could bring about increases in take-up and in BSF’s contribution to poverty alleviation, in keeping with principles (g), (h) and (e) and the Charter commitment.

Observation3: SCoSS welcomes the introduction of advance applications for Best Start Foods and of provision for backdated awards of qualifying benefits to confer eligibility for Best Start Foods.

BSF payments to an individual whose qualifying low-income benefit is Universal Credit continue for a period of eight weeks after entitlement to UC ends.21BSF Regulation 6(3) Draft Regulation 4(3) extends this eight-week run on so that it applies to all qualifying benefits, not just Universal Credit.22Draft Regulation 4(3) While it may be more common for Universal Credit entitlement to stop and start,23For example, because Universal Credit’s monthly assessment does not adjust for weekly paid wages, it can stop when there are five weekly payments in the month. it is fairer to remove this unequal treatment and provide a run on for all children and families who get BSF, irrespective of which qualifying benefit they receive. Most of the qualifying benefits are ‘legacy benefits’ which are being replaced by Universal Credit. In September 2023, the Department for Work and Pensions started the process of moving families in Scotland who get tax credits or other legacy benefits onto Universal Credit through ‘managed migration’. Under managed migration, families who do not claim Universal Credit in time will have their legacy benefit payments terminated. It is timely to introduce an 8-week run on for these families to allow their BSF payments to continue if this occurs.

Observation 4: SCoSS welcomes the extension of the eight-week ‘run-on’ for Best Start Foods awards to qualifying benefits other than Universal Credit.

An award of BSF can already be made in the absence of a qualifying low-income benefit in very limited circumstances. The following individuals are covered by the exception:27This is set out in BSF regulations 7, 7A and 8.

  • A pregnant person under 18 years old, or who was under 18 when they became pregnant
  • The partner of a pregnant person under 18 years old, or who was under 18 when they became pregnant
  • A child under one year old, whose parent or responsible individual is under 18, or was under 18 when the child was born

The draft Regulations expand the pool of individuals who are entitled to BSF without receipt of a qualifying low-income benefit, to include:

  • A pregnant person aged 18 or 19 who is a dependant.28Draft Regulation 5(2), replacing the current text of BSF Regulation 7(1)(b). The pregnant person is a dependant if another person receives Child Benefit, Child Tax Credit, the child element of Universal Credit or the child responsibility addition to State Pension Credit on their behalf, or they are in kinship care. This entitlement continues until the child is born, even if the pregnant person is no longer a dependant29Draft Regulation 5(3), amending BSF Regulation 7(2)
  • The person upon whom an 18- or 19-year old pregnant person is dependent, or their partner. This entitlement continues until the child is born, even if the pregnant person is no longer a dependant30Draft Regulation 7, inserting new BSF Regulation 7B
  • An 18- or 19-year old dependant who is the partner of a pregnant person. This entitlement continues until the child is born even if the partner is no longer a dependant31Draft Regulation 6, amending BSF Regulation 7A
  • A child under one year old, whose parent or carer is an 18- or 19-year-old dependant. The child continues to be entitled until their first birthday, even if their parent or carer is no longer a dependant32Draft Regulation 8(2), replacing the current text of BSF Regulation 8(1)(b), and draft Regulation 8(4), replacing the current text of BSF Regulation 8(2)
  • A child under one year old whose parent was under 18 or an 18/19-year-old dependant during pregnancy, as long as that parent or their partner is responsible for the child33Draft Regulation 8(2), replacing the current text of BSF Regulation 8(1)(b)
  • A child aged one or two years old, whose parent or carer is under 18 or an 18/19-year-old dependant. Entitlement ends if the parent or carer turns 18 or is no longer a dependant34Draft Regulation 8(3), inserting new BSF Regulation 8(1)(c), and draft Regulation 8(4), inserting new BSF Regulation 8(3) and (4)

Many of these provisions serve to align the conditions of entitlement for BSF to those for BSG. There are some exceptions, reflecting the different nature of BSF as an ongoing payment as opposed to a one-off grant. The draft Regulations affecting awards where the pregnant person or parent is under 18 or an 18/19-year-old dependant have no equivalent in the SCP regulations as SCP is only payable to individuals in receipt of a qualifying low-income benefit.

SCoSS welcomes the greater alignment between BSF and BSG due to its potential to help people understand their families’ entitlements and consequently improve take-up. The CRWIA indicates that around 700 parents in Scotland aged 18 or 19 are responsible for a child aged one or two. Some of these children would probably have been entitled to BSF anyway because their parent, or the person upon whom their parent is dependent, receives a qualifying benefit, so the additional number of eligible individuals is likely to be very low. Nonetheless, even a limited extension of eligibility in combination with increased take-up would mean additional resources being available to teenage parents, pregnant teenagers and their families, who are more vulnerable than average to various negative outcomes.35

Enabling more children to qualify for SCP on the basis of their parent’s circumstances, rather than relying on the circumstances of the person upon whom the parent or pregnant person depends (typically a grandparent), is also in keeping with articles 5 and 18 UNCRC. These emphasise the parent’s primary responsibility for supporting the realisation of their children’s rights. Similarly, enabling more pregnant teenagers to qualify in their own right will support their autonomy (protected by article 8 ECHR) and, where the pregnant person is legally a child themself,36Draft Regulation 11(5) clarifies that, in the context of BSF, the term ‘child’ only applies to a child under three years old, aligning the BSF regulations with the BSG rules and current practice for BSF. their ability to manage their own affairs in line with their developing capabilities, again in keeping with article 5 UNCRC.

At the same time, the eligibility criteria for BSF are complex and this will remain the case after the draft Regulations have been made.

Observation 5: SCoSS broadly welcomes the changes being made to the rules for eligibility for Best Start Foods, acknowledges the challenge of communicating complex eligibility criteria and notes the importance of clear and unambiguous guidance documentation for applicants, administrators etc.

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