Disability assistance for children and young people amendments: response to SCoSS

From: Minister for Social Security Ben Macpherson to: Dr Sally Witcher OBE, chair of the Scottish Commission on Social Security (SCoSS)

Letter - sent by email - on 10 September 2021.

Thank you for your scrutiny report of 06 August 2021 on the Disability Assistance for Children and Young People (Scotland) Amendment Regulations 2021. I would like to express my sincere thanks to SCoSS for considering these regulations despite the challenging timescales.

I appreciate that SCoSS has been asked to consider a number of instruments concurrently and I am grateful that this has been accommodated. I am sure you will agree that the volume and complexity of work reflects the scale of the changes that we are seeking to deliver as we move forward with delivery of disability assistance.

Please find attached a copy of the Scottish Government’s response to SCoSS’ recommendations (set out in the accompanying annex). I have issued copies to the Convener of the Social Justice and Social Security Committee.

I am pleased to confirm that we have accepted the majority of recommendations made by SCoSS. Where we have not been able to accept a recommendation, or can only partially do so, these have been set out in the attached annex.

There are further amendments to the regulations which we have not been able to refer to SCoSS, as they were identified late in the process. These further amendments are set out in the accompanying draft instrument and are to be made using the regulation making power in section 31(2) of the Social Security Scotland Act 2018 (“the 2018 Act”).

The draft amendments make changes to the regulations by extending the scenarios whereby Scottish Ministers are required to make a determination of entitlement. They also clarify that it will be the value of entitlement, rather than amount paid, which will be considered when calculating any increased award an individual was entitled to for a previous period following a subsequent determination.

I apologise for not including these amendments when the draft amendment regulations were submitted to SCoSS for scrutiny in June. On this occasion I consider it appropriate to not delay the proposed laying timetable in order to provide SCoSS with an opportunity to report on these draft regulations before they are laid, because of the benefit of laying all the proposed amendments as part of a single instrument, and because the further amendments are considered minor and technical in nature and merely give effect to the original policy intent.

Regrettably we have also had to temporarily delay the introduction of the amendment to regulation 7 which would allow the Scottish Ministers to temporarily stop payment of CDP rather than end entitlement if the child has a temporary absence of less than 12 months from the Common Travel Area. This is because the system capability to provide this will require more development work than anticipated.

We fully agree with SCoSS’ comments that this provision will reduce the possibility of unnecessary gaps in entitlement or reapplications, and will contribute to the aspiration to an efficient social security system. In recognition of the importance of this, we will seek to reintroduce this provision in a future statutory instrument.

There are certain amendments in the draft regulations which are not subject to formal scrutiny by SCoSS:

• the amendments to regulation 37 (duty to re-determine) of the principal regulations which are made under section 43(5) of the 2018 Act; and
• the amendments to part 3 of the schedule of the principal regulations, which are made under section 95 of the 2018 Act.

I should highlight that while some of the provisions made under section 95 of the 2018 Act were provided to you for information and context, further changes to these provisions have since been made that were not shared. These include some further technical fixes subsequently identified and the case transfer backdating provisions. 

I am confident that the changes we have made in response to the recommendations from SCoSS will clarify our policy intention. I believe that the changes demonstrate that we are continuing to listen and that our decisions are informed by evidence of what is right for clients.

Thank you again for your continued co-operation and support. I am grateful to SCoSS Members for the helpful and constructive way in which they have engaged with officials, and in helping to scrutinise the amendment regulations.

BEN MACPHERSON