Social security - cross-border amendment and case transfer revocation: Equality and Fairer Scotland Duty impact assessments considerations

Policy summary

These regulations make several changes to the disability and carers benefits, Scottish Child Payment, Best Start Foods and Best Start Grants. 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 and Pensions (England and Wales) or the Department for Communities (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. Until these changes are made, people in this position have their DWP/DfC benefits transferred to Social Security Scotland benefit automatically after their move to Scotland. This is the same approach to individuals with a DWP-administered award living in Scotland, who have their award automatically transferred to the devolved Scottish equivalent, a process known as case transfer. This will no longer be possible to facilitate once the case transfer of benefits has completed, as the technical functionality to share information required to facilitate a like-for-like transfer between the DWP and Social Security Scotland will no longer be available.

Because the automated transfer process will no longer be available, these regulations will also revoke case transfer provisions for CDP, ADP, CSP, PADP and Scottish Adult DLA, once case transfer for each benefit is complete. As the case transfer for CDP is already completed, the new cross-border process will replace the current manual cross-border process. The case transfer provisions will still apply for anyone who has already started the case transfer journey when these regulations come into force, as will provisions which allow for post-transfer determinations on entitlement to be made. These regulations 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 miscellaneous amendments to residence and presence conditions for Best Start Foods (BSF) and Best Start Grant (BSG), update references to international social security coordination agreements for disability and carers benefits and to revoke provisions relating to the initial period of applications for disability and carers 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) provisions 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 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 EU law.

Change 3: Revocation and savings of Case Transfer, regulations relating to individuals to whom a DWP or DfC benefit is still 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 26 weeks of 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.

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 will not require individuals to make a new application when they move to Scotland from the rest of the UK with an award of DLA, because Scottish Adult DLA does not have a full new application journey. 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 application within 32 (for CDP) or 34 weeks of the date of move (for other disability benefits). 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 2 part process, cross-border clients are those who make a full application within 26 weeks of the date of the 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. If an individual has a good reason why they provide their name and date of birth after the 26 week deadline, or complete their full application after the 32 or 34 week deadline (or after the 26 week application deadline for CSP), they will be treated as a cross border client having met the deadline so that they can have their award backdated to the day after their DWP/DfC end of entitlement date. For Scottish Adult DLA, those not covered by cross border provisions will be able to utilise existing provisions allowing individuals to request an award of Scottish Adult DLA within a year of their DLA award ending. People over state pension age who were in receipt of PIP or DLA will be able to access the mobility component for ADP or Scottish Adult DLA at the rate of the mobility component the person received in PIP or DLA at the time they moved to Scotland.

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 or requests are made within certain timescales, the transition between DWP/DfC and Social Security Scotland benefits will be as smooth as possible. 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. We will do this by:

• Prioritising cross-border applications in a separate work queue for quicker processing
• Backdate clients’ awards to the day after their previous awards ends as long as they submit their name and date of birth to Social Security Scotland within 26 weeks of their move (Part 1 application) and complete the full application (Part 2) either within 32 weeks for CDP or 34 weeks of that the date of move for other benefits, or submit a full application within 26 weeks of the move for CSP (which does not have a two part application process)
• Publicise the need to make a new application on mygov.scot and on other channels

Change 4: Carer Support Payment beginning of entitlement provisions.

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 benefit is then awarded, where this is within 26 weeks of the CSP award ending.

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

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.

These regulations will also save existing provisions regarding when an award ends where an individual has already had their assistance suspended, prior to the legislation being amended, due to disengaging with 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.

In 2022, the Scottish Government completed an Equality Impact Assessment that detailed the impact of the suspensions process more generally when suspensions provisions were introduced for CDP and SCP^[2].

Scope of this policy note on updates to impact assessments

This impact assessment considers updates to the data previously collected for the impact assessments for the principal regulations for Best Start Foods, Best Start Grant, Child Disability Payment, Adult Disability Payment, Carer Support Payment, Pension Age Disability Payment and Scottish Adult Disability Living Allowance.

The Child Rights and Wellbeing Impact Assessment (CRWIA) for these regulations will be published separately alongside the draft amendment regulations.