A range of different people are able to claim BSF or receive payments on behalf of the child or pregnant person the food is intended for, depending on the family’s circumstances. The draft Regulations make some changes to the rules in this area.

During pregnancy, BSF can currently be awarded to any of the following individuals, as long as the pregnant person is otherwise eligible:¹Currently this means that if a pregnant person is eligible for BSF because they are under 18, their partner is too; following amendment (as noted above), the pregnant person or their partner will also be eligible if the pregnant person is aged 18 or 19 and a dependant.

• The pregnant person
• The partner of the pregnant person, as long as the BSF award is used for the benefit of the pregnant person²BSF regulations 7 and 7A

The draft Regulations widen these criteria so that the partner of the pregnant person can qualify on the basis that they are aged under 18 or are an 18- or 19-year old dependant, if the pregnant person does not – as long as the BSF award is used for the benefit of the pregnant person.³Draft Regulation 6, amending BSF Regulation 7A This means that some additional pregnant people will be able to benefit from BSF, because their partner becomes eligible whereas the pregnant person was not.

In addition, where the pregnant person is under 18, or an 18/19-year-old dependant, the draft Regulations extend eligibility for BSF to the pregnant person’s parent or carer, or that person’s partner.⁴Draft Regulation 7, inserting new BSF Regulation 7B The parent or carer will retain eligibility until the end of the pregnancy, even if the pregnant person is no longer a dependant.

Finally, the draft Regulations clarify that, where the Regulation refers to the need for a responsible person to act on behalf of a ‘child’, this only means a child under 3 who is entitled to BSF.⁵Draft Regulation 11(5), amending BSF Regulation 11(4) This puts beyond doubt that a pregnant person aged under 16 or who is a dependant can claim BSF in their own right.

Once the child has been born, only the child is entitled to BSF. While the child is the award holder, the expectation is that applications will be completed, claims managed and payments received by the person responsible for the child. Following the draft Regulations, the person responsible for the child or their partner will be equally capable of acting on behalf of the child.¹¹Draft Regulation 11(5), amending BSF Regulation 11(4); BSF Regulation 4 defines what is meant by responsibility for a child.

There is much to commend in these provisions. They will allow couples and families greater flexibility to determine who is the best person to claim BSF or manage a claim on behalf of a child. They will mean BSF operates in a way that better respects the autonomy of pregnant under-16s.¹²This is in keeping with article 8 ECHR. However, widening the pool of potential award holders and payees also increases the likelihood that Social Security Scotland will have to adjudicate between competing claims in respect of the same pregnancy or between two people who want to be paid BSF on behalf of the same child. New opportunities might also be created for financial abuse or coercive control and it will be important to ensure safeguards against this eventuality are in place.

Once the draft Regulations have been made, during pregnancy BSF might be claimed by the pregnant person, their partner or their parent or carer. Helpfully, the draft Regulations will ensure that an application from the pregnant person takes precedence over an application from their partner or the person upon whom they are dependent. If an individual in one of the other categories is already receiving BSF in respect of the pregnancy, then that award will terminate when the pregnant person successfully applies for BSF themself.¹⁵Draft Regulation 11(2), amending BSF Regulation 11(1A) What is currently missing is a statutory provision on competing claims from eligible individuals when neither applicant is the pregnant person. Scottish Government officials have advised SCoSS that they plan to make a further amendment to the effect that, in such cases, Social Security Scotland will decide which application should prevail, ‘taking into account the circumstances of the pregnant person’.

Observation 6: SCoSS welcomes the prioritisation of Best Start Foods applications from the pregnant person themself during pregnancy where there are competing claims from eligible applicants, and the commitment to introduce further provisions for adjudicating between competing claims.

The position is more complicated once the child has been born. As noted above, once the draft Regulations have been made the person with responsibility for the child or their partner will be expected to act on behalf of the child in respect of BSF, including making applications and receiving payments. Multiple individuals could fall within these categories: either parent, grandparents, an alternative carer, and their respective partners. In response to a question from SCoSS, Scottish Government officials explained that, where more than one person wishes to act and be paid on behalf of the child, Social Security Scotland will consider who is best placed to do so. These decisions will be informed by the competing claims hierarchy used for SCP and BSG. Under this hierarchy, if the child is named on someone’s Universal Credit, Child Tax Credit or Pension Credit claim, or has a kinship carer, that person takes precedence over someone who claims Child Benefit in respect of the child, who in turn takes precedence over anyone else.¹⁶Early Years Assistance (Best Start Grants) (Scotland) Regulations 2018 schedule 1 para 6; see also Social Security Scotland – Competing claims for Scottish Child Payment

However, the hierarchy cannot provide a clear answer in every case and will not have any statutory status in respect of BSF. Instead, the draft Regulations confer considerable discretion upon Social Security Scotland to pay the person it deems most appropriate, regardless of who receives what benefits on behalf of the child. Correspondingly, Social Security Scotland will be able to cease payments to an individual if the agency no longer considers the arrangement ‘appropriate’ – for example, if it appears the recipient is not actually using the BSF award for the benefit of the child.¹⁷Draft Regulation 11(4), inserting new BSF Regulation 11(5) and (6) This should enable the agency to establish payment arrangements that it deems reflect the best interests of the child.¹⁸In keeping with article 3(1) of the UNCRC. Someone who disagrees with the decision would have the option of requesting an internal review.

The partner of a pregnant person can already claim BSF if the pregnant person is eligible. The draft Regulations will allow for partners to do so in circumstances where the pregnant person would not be eligible themself, although (as noted above) they would be required to use the award for the benefit of the pregnant person. They also make it possible for the person upon whom a young pregnant person is dependent to claim on their behalf.

Discussion at SCoSS’s roundtable on the draft Regulations raised concerns about the potential for coercive control/ financial or economic abuse arising from these new provisions. Stakeholders also noted that social security rules should not enable abuse or make it harder for the pregnant person to subsequently challenge the decision to pay their partner.

States have obligations to protect people from inhuman and degrading treatment and to respect their private and family life and autonomy,²³These are grounded in articles 3 and 8 ECHR. all of which imply a need to be alert to and minimise risk of domestic abuse in any form.²⁴As with other provisions, e.g. UNCRC Article 19 protection from violence, abuse and neglect. Further, if financial abuse means someone else is benefitting from assistance that is intended to provide nutrition for a pregnant person or infant, then the purpose of BSF is not being achieved and that person is not entitled to receive payment.²⁵Section 13 of the Social Security Act 1998 defines welfare food schemes as “schemes to provide benefits for prescribed descriptions of (a) pregnant women, (b) mothers, and (c) children, with a view to helping and encouraging them to have access to… food of a prescribed description,” therefore prohibiting use of the funds on the prepaid card for any other purpose.

Draft impact assessments consider the potential for coercive control from a family member (such as the pregnant person’s own parent).²⁶Including the Equality, Island Communities and Child Rights & Wellbeing Impact Assessments. However, the potential for abuse from a partner was not explicitly considered in the drafts submitted to SCoSS. There is evidence that pregnancy can be a trigger for domestic abuse, or worsen existing abuse, with some risk factors associated with higher risks of abuse (such as younger age and poverty).²⁷See https://womensaid.scot/wp-content/uploads/2017/07/EverydayTerrorismReport.pdf Potentially, this provision could increase the vulnerability to abuse of people with one or multiple protected characteristics (notably, pregnancy, sex and age). Scottish Government officials have advised SCoSS that this is because the only new circumstances in which a pregnant person’s partner would be able to claim BSF are when the pregnant person is not eligible in their own right. Nonetheless, stakeholders considered – and SCoSS agrees – that this matter could merit further attention as the draft impact assessments, especially the Equality Impact Assessment, are finalised.

The partner of a pregnant person or the person upon whom they are dependent may already claim a Best Start Pregnancy and Baby Grant. Scottish Government officials have advised SCoSS that where a BSG or any other claim raises concerns about coercive control, Social Security Scotland staff should make a referral to the agency’s safeguarding team, which may recommend further steps including a referral to a local authority under adult or child protection legislation. Further exploring the issue through the equality impact might enable useful consideration of how these processes might be refined or supplemented.

Recommendation 1: As part of the continuing updating of the relevant impact assessments, the Scottish Government should work with stakeholders, including those engaged in supporting individuals experiencing domestic or financial abuse, to develop an understanding of the potential for abuse by a partner and what additional mitigations may need to be put in place.