Social Security - Cross-Border Amendment regulations: child rights and wellbeing impact assessment (CRWIA)

Child Rights and Wellbeing Impact Assessment Template

Introduction

1. Brief Summary

Type of proposal

• SSI Scottish Statutory Instrument

Key Terms

Determination - the process of establishing something exactly by calculation or research. In this case a determination is the process of seeing if a person fits the criteria to receive these benefits.

Suspension – the act of stopping something from happening for a period of time. In this case a suspension is the process of stopping a benefit payment for a period of time.

Cross-border – Individuals in receipt of a relevant benefit from DWP or DfC who move to Scotland from another part of the UK. Clients must submit their name and date of birth within 26 weeks of the date of move and complete the full application within 32 or 34 weeks of the date of move to be treated as cross-border clients. For CSP, which does not have a two part application process, it is those who submit a full application within 26 weeks of a move.

The Social Security (Cross-border Provision, Case Transfer and Miscellaneous Amendments) (Scotland) Regulations 2025

These regulations make several changes to the disability and carer benefits, Scottish Child Payment, Best Start Foods and Best Start Grant. The main aim of the regulations is to amend the Child Disability Payment (CDP), Adult Disability Payment (ADP), Pension Age Disability Payment (PADP) and Carer Support Payment (CSP) regulations so that people moving to Scotland from the rest of the UK who have been in receipt of a corresponding benefit from the Department for Work (DWP) and Pensions (England and Wales) or the Department for Communities (DfC) (Northern Ireland) will need to make a new application for a corresponding Social Security Scotland benefit and will have their award backdated to the day after their DWP/DfC benefit ends. For Scottish Adult Disability Living Allowance (Scottish Adult DLA), which does not have a route for new applications, cross border clients in receipt of DLA must make a request for a determination of Scottish Adult DLA Currently, clients in this position will have their DWP/DfC benefits transferred to the corresponding Social Security Scotland benefit automatically after their move to Scotland. This will not be possible once the case transfer of benefits has completed, as the technical functionality to share information between the different government departments will no longer be available.

Anyone who moves to Scotland, and notifies Scottish Ministers of their move before these regulations come into force, can still be transferred without needing to make a new application. Disabled people who move after the coming to force (CIF) date, have 26 weeks from the date of move to submit their name and date of birth to Social Security Scotland to indicate their intention to make an application for disability benefit, with 32 weeks to then complete the full application for CDP and 34 weeks for ADP and PADP in order to have their Scottish disability benefit backdated to when their DWP administered disability benefit ends. For Scottish Adult DLA, the individual has 26 weeks to submit their name and date of birth and 34 weeks to supply the required information to support their request for a determination.

For CSP, which does not have a two part application process, where a carer notifies Scottish Ministers after the CIF date that they have moved, then they will have 26 weeks from their date of move to make a new application in order to benefit from the new backdating rules. If an application is made later than 26 weeks from the date of move, then the normal CSP backdating rules will apply. The amendments to the CSP regulations also cover changes to entitlement start date in some scenarios and temporary stops in entitlement.

Where the Scottish Ministers are satisfied that there is a good reason why an individual provides their name and date of birth after the 26 week deadline, or completes their full application after the 32 or 34 week deadline (or after the 26 week application deadline for CSP), they may treat the application as having been made within that period.

These regulations also revoke case transfer provisions for the above benefits. The case transfer provisions will still apply for anyone who has already started the case transfer journey when these regulations come into force. These regulations will also include provisions which set out backdated payments to be made where someone should have had their case transferred but did not.

Suspension related amendments will also be made to CDP, ADP, PADP, Scottish Adult DLA and Scottish Child Payment (SCP) regulations. These will ensure that where a person has continually disengaged with requests for information from Social Security Scotland and is no longer entitled to assistance after suspension, their award can be ended on the date their award was suspended. This will apply to both scheduled reviews and determinations following a change of circumstances being reported, where an individual has continued to not engage with a request for information under section 54 of the Social Security (Scotland) Act 2018. This will mean that no payment is due to the individual for the period of suspension.

This instrument will also be used to make other types of amendments, mostly to clarify residence conditions for Best Start Foods (BSF) and Best Start Grants (BSG), to update references to international social security coordination agreements for disability and carer benefits and to revoke provisions relating to the initial period of applications for disability and carer benefits.

Change 1: Amendments to add the Social Security Agreement between the United Kingdom and Gibraltar into the relevant benefit regulations.

We are amending CDP, ADP, PADP, CSP, Young Carer Grant (YCG) and Carer’s Allowance Supplement (CAS) regulations to include references to the 2024 social security agreement between the UK and Gibraltar, to make clear that people covered by this agreement are covered by the regulations of these benefits.

Change 2: Amendments to the Best Start Foods and Best Start Grant regulations to make clear that people who have made a valid application to the EU Settlement Scheme and people who are joining family members are able to apply.

These amendments to the Best Start Foods (BSF) and Best Start Grant (BSG) make clear that applicants to the EU settlement scheme (EUSS) and joining family members in the first three months of residence are entitled to apply. This is currently provided for by direct effect of the UK-EU Withdrawal Agreement. We have also amended the BSG regulations to revoke references to redundant (no longer in use) EU law.

Change 3: Revocation and savings of case transfer, regulations relating to individuals to whom a DWP or DfC benefit is paid after the Coming into Force date, and amendments to the regulations relating to individuals to whom a DWP or DfC benefit was paid in another part of the UK before moving to Scotland.

These regulations will revoke case transfer provisions for CDP, ADP, PADP, CSP and Scottish Adult DLA as the functionality to transfer the required data between the DWP and Social Security Scotland will no longer be available. Anyone who has started the transfer process before these regulations come into force will be able to complete the process. Coming into force is staggered to take account of the different end dates of case transfer for each benefit.

We have saved several case transfer provisions that will need to be maintained, such as provisions for review determinations after transfer, or those that require a determination without application where the previous DWP-administered award is retroactively changed.

We have made every effort to ensure all relevant disability and carer benefit awards have been identified for case transfer. However, there are two scenarios that could result in someone’s award not transferring during this process when it should have:

Incorrect data – We select cases for transfer based on the postcode data held by DWP. This may be incorrect or incomplete. After selecting the last known cases for each benefit, we put out communications urging people to get in touch with us if they have not yet heard from us. We cannot know how many people have been missed, but we expect numbers to be very low. We are not aware of anyone contacting us to date in response to our communications for DLA for children, PIP, or Carer’s Allowance.

Retroactive entitlement – In order for an award to transfer, entitlement must be ongoing during the transfer period (i.e. between when the first and last cases being transferred). However, it is possible for awards to be retroactively started from a past period. For example, where a DWP LEAP exercise occurs or an outstanding appeal is decided. In these circumstances, had the original decision been correct, the person’s award would have transferred. We expect this situation to be relatively rare.

As such, these amendments also cover the potential situation where an individual should have had their award transferred but did not. Because the required data sharing between the DWP and Social Security Scotland will no longer be available, anyone present in Scotland who remains or would become entitled to the equivalent DWP benefits after these regulations come into force date will be required to apply for the relevant Social Security Scotland benefit. If they do so within the agreed deadline after the date Scottish Ministers become aware that the individual’s award has not been transferred to a Scottish benefit, their entitlement begins on the day after the day on which the individual’s entitlement to their previous benefit, as administered by DWP, ceased. The agreed timeframe to submit the full application varies benefit by benefit; 26 weeks for CSP, 32 weeks for CDP and 34 weeks for ADP, PADP and SA DLA.

We are also adding provision to allow anyone who is currently receiving a Scottish benefit because they applied to have their award backdated if we later discover their award should have transferred but did not.

Also as a result of the technical functionality to share required data between the DWP and Social Security Scotland ending, these amendments to ADP, CDP, CSP, and PADP will remove the regulations requiring a determination without application when individuals move to Scotland from the rest of the UK, and they are paid a DWP/DfC benefit in the rest of the UK. Instead, we will require these individuals to make a new application.

For Scottish Adult DLA, we are also removing the provision that requires a determination without application when an individual moves to Scotland from the rest of the UK and is being paid DLA for adults. However, we will not require individuals to make a new application because Scottish Adult DLA does not have a full new application process. Instead, individuals will request that Scottish Ministers make a determination of their entitlement to Scottish Adult DLA. This request must be made to Scottish Ministers in such form, and accompanied by such evidence, as the Scottish Ministers require. Scottish Ministers must then make a determination of an individual’s entitlement to Scottish Adult DLA.

We have defined cross-border clients as individuals who submit their name and date of birth within 26 weeks of the date of move and complete the full application within 32 or 34 weeks of the date of move. The additional 6 weeks for CDP and 8 weeks for other disability benefits reflect the time period allowed to complete part two of an application for disability benefits, and aligns with the time provided for new applications. For CSP, which does not have a two part application process, it is those who submit a full application within 26 weeks of a move.

Clients in this position will be able to have their awards begin from the day after the end of entitlement date of their previous award. Those who don’t meet that period will be treated in the same way as those making fresh applications, unless a good reason applies. People over state pension age who were in receipt of Personal Independence Payment (PIP) or DLA will be able to access the mobility component (a payment which supports clients to make journeys) for ADP or Scottish Adult DLA at the rate of the mobility component the person received in PIP or DLA at the time that they moved to Scotland. This is because Pension Age Disability Payment does not include a mobility component.

Anyone who moves to Scotland and notifies Scottish Ministers of their move before these regulations come into force can still be transferred without needing to make a new application.

DWP will also amend their legislation so that clients who move to Scotland will have their DWP benefit paid for 13 weeks from the date of the move. This aims to avoid gaps in payments and gives clients time to make a new application for a Scottish benefit. This process is already in place for clients in receipt of Child Disability Living Allowance (cDLA), where the case transfer to CDP has already been completed. For CDP, there is currently a clerical cross-border process in place for moving from rest of the UK to Scotland while in receipt of cDLA. It is not possible to scale up this for the other benefits and DWP are not able to support the current solution long-term, which is why CDP will also require a new application.

The aim of the proposed changes to the ADP, CDP, CSP, PADP and Scottish Adult DLA regulations for cross-border movers is to ensure that where applications are made within certain timescales, the transition between DWP/DfC and Social Security Scotland benefits will be smooth. While people moving to Scotland from the rest of the UK will no longer be able to receive a determination without application, we want to ensure that people have their awards set up accurately from the beginning, in the most straightforward way possible. We want to design the process to minimise the risk of gaps in payments for people, while also minimising the risk of continuing awards made in error by other bodies.

Change 4: Carer Support Payment entitlement start date.

The regulations include amendments to the CSP regulations on when entitlement to support can begin. Amendments provide for specific entitlement start dates for individuals applying following a move to Scotland, individuals living in Scotland who have been missed from the case transfer process, and those awarded Carer’s Allowance (CA) retrospectively. This is intended to prevent any gaps in entitlement to support between CA and CSP. Amendments also allow for entitlement to support to begin on a date after the application is made, or the date entitlement would otherwise start, where the individual does not meet all of the eligibility criteria on that date, but will on a later date, within 13 weeks of this. This is intended to prevent the need for CSP to be denied and individuals to be required to apply again for support when it can be seen that they would become eligible within a short period after their application.

Change 5: Carer Support Payment temporary stops in entitlement provisions.

These regulations also amend the provision in CSP regulations regarding temporary stops in entitlement. Temporary stops in entitlement provisions allow for a CSP award which has ended to be reinstated without an application in certain circumstances where an individual becomes entitled again within 26 weeks. These regulations extend provisions so that when a CSP award has been ended because the person they are caring for is no longer getting a qualifying disability benefit following a move from the rest of the UK to Scotland, or due to having been missed in the case transfer process, it can be reinstated without an application when a qualifying disability

Change 6: Regulations relating to when an award can be ended relating to specific suspension scenarios.

These regulations will also make suspension related amendments to CDP, ADP, PADP, Scottish Adult DLA and SCP regulations. These will ensure that where a person has continually not responded to requests for information from Social Security Scotland and is no longer entitled to assistance after suspension, their award can be ended on the date their award was suspended. This will apply to both scheduled reviews and determinations following a change of circumstances being reported, where an individual has continued to not respond to requests for information under section 54 of the Social Security (Scotland) Act 2018. This will mean that no payment is due to the individual for the period of suspension.

These regulations will also save existing provisions regarding when an award ends where an individual has already had their assistance suspended due to not responding to requests for information from Social Security Scotland. This means where an individual’s assistance was suspended before the updated regulations come into force, they will continue to be considered under the existing process when either their suspension is lifted or entitlement is ended.

The ability to suspend an individual’s assistance exists in disability benefits for all age groups in Scotland, as well as SCP. These amendments relate only to scenarios where a client has disengaged when Social Security Scotland has requested information relating to entitlement, and continues to disengage throughout the suspension process, meaning the individual’s ongoing entitlement cannot be assured.

Although this may lead to a small reduction in the value of backdated entitlement in circumstances where an individual’s award is ended, Social Security Scotland’s existing processes and safeguards mean that disabled people are provided with various opportunities to re-engage with the process of returning requested information, both prior to the suspension and before an award is ended. Social Security Scotland also has robust processes to consider safeguarding and whether a suspension might cause financial hardship. Scottish Ministers trust what clients tell Social Security Scotland about their circumstances and do not suspend payments if it will cause financial hardship.

Therefore, the Scottish Government considers this change to be justified and proportionate. As the suspensions process will remain the same, individuals are provided opportunities to re-engage with requests for information and are able to tell Social Security Scotland if they would face financial hardship where a suspension is being considered. The only change arising is to the date an individual’s assistance will end following the period of suspension where this particular scenario arises.

Start date of proposal’s development: January 2024

Start date of CRWIA process: 17 September 2024

2. With reference given to the requirements of the UNCRC (Incorporation) (Scotland) Act 2024, which aspects of the proposal are relevant to children’s rights?

The amendments to the CDP regulations, ADP regulations and CSP regulations to revoke case transfer and remove the ‘determination without application’ are relevant to children and young people under 18, as they will be required to make a new application when they are identified as having missed transfer or where they move to Scotland from the rest of the UK, instead of having their award automatically transferred to Social Security Scotland. The revocation of case transfer provisions also means they will not receive an award that is like-for-like compared to their DWP award. The amendments also seek to ensure the process of applying is as smooth as possible.

These amendment regulations are especially relevant to the Article 26 (Social security) and Article 27 (adequate standard of living) of UNCRC. The aim of the proposals is to ensure that people can quickly access Scottish social security benefits as they move to Scotland and avoid interruptions to payments as far as is possible. It is not possible to fully eliminate the risk of gaps in payments so it is possible that some clients may have a worse journey in comparison to the case transfer process, where clients’ payments transfer automatically to Social Security Scotland. It is not possible to continue case transfer indefinitely, so a new process needs to be introduced to protect clients’ payments as much as possible by backdating their awards to the day after their previous DWP/DfC award ends, and by prioritising these applications so they are processed quickly to avoid any breaks in payments. The requirement to make a new application will also reduce the risk of fraud and error in comparison to a process where a decision without application is made without the appropriate forms and evidence from the DWP. By introducing these changes, we are working to remove any negative impacts caused by clients moving from one social security system to another.

The amendments to Best Start Foods and Best Start Grant regulations are also relevant. The changes to BSF and BSG regulations have a positive impact on Article 2 of children’s rights as they ensure that EU nationals aren’t incorrectly denied if they are joining family members or late applicants to the EU settlement scheme. The majority of applicants to the Best Start Grants and Best Start Foods will be in receipt of a DWP benefit and no information is gathered about their immigration status. A small number of young people aged under-18 are able to access these benefits without a qualifying benefit, in which case they will need to satisfy residence and presence criteria. This amendment to the BSF and BSG regulations clarifies that any young applicants who have recently arrived in the UK as a joining family member of someone with leave under EU Settlement Scheme, or anyone with a pending application to EUSS, will be able to apply. These people are already entitled to these benefits under the UK-EU Withdrawal Agreement, but these changes make it clear on the face of legislation. While we have not been able to identify any clients in this category and are confident that we have correct processes in place so that no one would be incorrectly denied, we believe making this change will have a positive impact on young people accessing these benefits in the future by ensuring that no one is incorrectly denied. This ensures no negative impact to Article 26, whereby access to the benefit is denied due to a lack of clarity in legislation or process.

The changes to regulations for when an award ends following a suspension (due to not responding to requests for information from Social Security Scotland) interacts with children’s rights. The suspensions processes will remain unchanged. When suspensions provisions were introduced to CDP and SCP regulations, these were considered through a Child Rights and Wellbeing Impact Assessment.^[1]

The changes being made will ensure Social Security Scotland can be assured of the individual’s ongoing entitlement. When suspensions were being introduced, stakeholders considered them to be a more proportionate action than immediately ending an individual’s entitlement to assistance when information has not been provided. Improvements to these regulations mean that Social Security Scotland will have further clarity on when entitlement ends in this specific scenario.

Suspension of an award is always a last resort and is not used punitively. There are a number of additional checks which take place on the day an award is suspended, including considering the risk of financial hardship and whether there are safeguarding concerns. For children and young people, this will include looking at the financial circumstances of the parent or guardian who is managing the assistance on their behalf.

The Scottish Government is ensuring that when the regulations are amended, safeguarding continues to be prioritised where Social Security Scotland has not had responses from an individual over a long period after requesting information from them. Safeguarding is of importance because Social Security Scotland does not have information to suggest why an individual might not be responding, and suspensions therefore provide a proportionate safeguard against payment of assistance to potentially vulnerable individuals where entitlement cannot be assured.

As these changes will provide assurance around an individual’s ongoing entitlement and the existing safeguards of the suspension process will remain unchanged, this change will have a positive impact on rights under Article 3.1 (best interests of the child) and Article 19.1 (protection from violence, abuse and neglect). Therefore, these amendments have a neutral to positive impact on the rights of children and young people in Scotland.

Scottish Ministers are also saving existing provisions related to this scenario. This means that individuals with suspended assistance under these specific circumstances prior to the amendments being made will continue to be considered under the existing process when either their suspension is lifted or entitlement is ended. This will have a positive impact on children or young people under their Article 26 rights, as such clients will have a consistent experience with the rules that were in place at the time of suspension.

3. Please provide a summary of the evidence gathered which will be used to inform your decision-making and the content of the proposal.

User research was carried out in June 2024 of CDP clients who had gone through the existing cross-border process as they are the closest proxy to future users.

A review of cross-cutting groups needs was also conducted as desk research, primarily using evidence gathered for ADP clients but the findings covered all impacted benefits.

Stakeholders engaged with included clients who had gone through the cross-border process themselves, Social Security Scotland colleagues who would process cross-border applications and third sector organisations, such as Housing Associations, who might support clients in their moves and / or applications.

CDP cross-border clients were asked about the difficulties they faced during their move, the communications they received and the overall experience. They were also asked for views on the new cross-border process (new application).

Clients found moving stressful generally, and this was compounded by other external factors (jobs, breakdown of relationships, health issues). They found communications from Social Security Scotland to be positive, helpful and clear (where they found DWP’s letters to be confusing). There was generally a lack of awareness around devolved benefits, and clients were impacted by breaks in payment and different payment dates across different organisations.

Their concerns revolved primarily around breaks in payment, difficulty of application, adding to an already stressful time and being given information about what benefits they could be entitled to in Scotland. They noted that a significant amount of self-advocacy was required.

Suggestions for improvement included an ‘intro pack’, clear letters and other communications, and information available in places like GP offices and schools.

In relation to the new application for CDP for cross-border clients, the participants were largely critical of the process, finding it to be unfair on parents and children and suggesting that it would unfairly disadvantage disabled people. There was an assumption that the process would be similar to case transfer and that DWP records would be available to Social Security Scotland. Once again a key concern identified was the possibility of breaks in payment.

During 2020, the Scottish Government undertook an informal, managed consultation with stakeholders through the Ill Health and Disability Benefits Stakeholder Reference Group (IHDBSRG) on introducing suspensions provisions. This engagement informed the high-level policy principles for suspensions and has helped in the development of improvements based on learning from the live service.

On 25 June 2020, a group of stakeholders wrote to the Cabinet Secretary for Social Security and Older People advising that they supported the Scottish Ministers suspending assistance where an individual has not provided information which is needed to review their entitlement. Stakeholders considered this a more proportionate action than immediately ending the individual’s entitlement to assistance on account of the information not being provided.

This previous engagement, as well as learning from the live service have contributed to developing these improvements in the regulations for when an individual continually disengages with requests for information from Social Security Scotland and is found to no longer be entitled to assistance following a period of suspension.

4. Further to the evidence described at ‘3’ have you identified any 'gaps' in evidence which may prevent determination of impact? If yes, please provide an explanation of how they will be addressed.

Due to the low numbers of people who have gone through the cross-border process for CDP (c.150 people by June 2024), the user research has only been carried out with a small number of clients. It is also difficult to do primary research with external users because of the nature of the cohort – cross-border movers are unknown unless they engage with Social Security Scotland, and future cross-border movers are not currently in Scotland.

The participant group for the user research in 2024 consisted of clients who were among the most proactive and engaged in terms of reporting change of address quickly to DWP, and engaging with services. Therefore, we can assume that they are among those users who are most knowledgeable about need to report change of address and most able to overcome barriers through self-advocacy and therefore may not be representative of the user group as a whole, many of whom would struggle to engage with government services in the way that these participants did.

5. Analysis of Evidence

The user research found that moving is a stressful time and that people’s circumstances will often add further barriers to engaging with services. It also became evident that services put up further barriers which made it more difficult for these clients to engage, which compounds the difficulties people already face around the time of a move.

Even with the current CDP cross border journey, which is like a case transfer, people experienced problems with their benefits as a result of the move while they are dealing with other transitions and many users will need a lot of support to navigate this move. Part of the reason to this is the lack of awareness of the current manual process of transferring clients’ data between DWP/DfC and Social Security Scotland. This has led to delays with clients’ payments and confusion on whether they need to make a new application.

The evidence from the user research shows that the current cross-border process with CDP is not working for families and adds stress and confusion during an already stressful time. The prospect of making a new application felt even more daunting to clients, raising concerns around how this would impact children, parents and clients with disabilities, as well as the possibility of breaks in payment and a need for self-advocacy and extra support.

6. What changes (if any) have been made to the proposal as a result of this assessment?

While it is not possible to eliminate the risk of breaks in payment entirely, we have worked to ensure this risk is as low as possible by:

• agreeing a 13 week run on period with DWP, where the client is paid for 13 weeks after their date of move
• ensuring the client has 26 weeks from the date of move or date they are identified as having missed transfer to self-identify to Social Security Scotland, with 32 weeks to then complete the full application for CDP and 34 weeks for ADP and PADP, and backdating their claim to the day after DWP payments cease. For CSP, they will have 26 weeks from their date of move to make a new application in order to benefit from the new backdating rules.
• Treating applications as having been made within that period where the Scottish Ministers are satisfied that there is a good reason why an individual provides their name and date of birth after the 26 week deadline, or completes their full application after the 32 or 34 week deadline (or after the 26 week application deadline for CSP)
• agreeing with DWP that they will refer clients to Social Security Scotland when client informs them of the move
• producing clear client-facing guidance on mygov.scot
• exploring ways to identify relevant cases quickly upon application so clients receive the correct communications
• prioritising relevant cases to minimise delay in receiving their benefit