The Disability Assistance for Children and Young People (Scotland) Regulations 2021 and the Scottish Child Payment Regulations 2020 (Miscellaneous Amendments) Regulations 2022: SCoSS scrutiny report

3. Habitual residence test for refugees

To be eligible for Child Disability Payment, a child or young person must meet residency conditions. They must be present in Scotland, and for at least 26 weeks in the last 52 weeks must have been in the UK^[1] (referred to as ‘the past presence test’). They must also be ‘habitually resident’ in the UK.^[2] Being habitually resident depends on being settled in the country e.g. being at school, or being registered with a Doctor, and usually requires a minimum period of residence of typically between one and three months.^[3]

There are exemptions for some groups from residency tests. Recently, Regulations were introduced to allow people evacuated from Afghanistan under the UK Government’s relocation and re-settlement schemes to access benefits, including Child Disability Payment, as soon as they arrive.^[4] They are exempt from the past presence test and the habitual residence test. SCoSS is scrutinising these emergency regulations retrospectively in a separate report.^[5]

Other refugees are also exempt from the 26-week past presence test, but are still required to be habitually resident e.g. to have been settled for a period of months. Responding to a query raised by SCoSS, Scottish Government has told us that the Department for Work and Pensions (DWP) does not in practice apply the habitual residence test to refugees claiming Disability Living Allowance, but has not amended Regulations to align with practice. Regulation 2(3) of the draft Regulations remedies this for Child Disability Payment by exempting those who have been granted refugee status or humanitarian protection and their dependants from the habitual residence test. (This does not apply to asylum seekers waiting for a decision on their application for refugee status, who are not usually entitled to social security benefits but may receive assistance through the separate asylum support system.)

This is a welcome simplification of complex residency rules. If the habitual residence test had been applied, although refugees would generally have been in the UK for long enough to pass the test by the time they are granted refugee status, there may still have been a burden on them and on Social Security Scotland of evidencing habitual residence. The change may be of real assistance in allowing immediate support to dependants joining family in the UK with refugee status. This improvement to the system advances equality and contributes to the principle of social security being a human right.^[6]

Carers of disabled children or adults with refugee status

The proposed exemption applies to disabled children and young people claiming Child Disability Payment, and we understand will also apply to disabled adults claiming Adult Disability Payment. However, the situation for carers is different. There is a mismatch in residency rules and exemptions from residency tests between Carer’s Allowance and disability assistance – Child Disability Payment and Adult Disability Payment. For example:

• Carer’s Allowance has a longer past presence test – it is not paid until someone has been in the UK for 104 weeks out of the last 156 weeks, compared to 26 weeks out of the last 52 weeks for Child Disability Payment and Adult Disability Payment.
• For Carer’s Allowance, there is no exemption from the past presence test for someone caring for a disabled refugee as there is for the refugee claiming disability assistance.^[7]
• For Carer’s Allowance, there is no exemption from the past presence test for someone caring for a terminally ill person as there is for the person who is terminally ill claiming disability assistance.

This mismatch leads to situations where a disabled child or adult can get disability assistance but their carer cannot get Carer’s Allowance, and thus cannot get Carer’s Allowance Supplement. This is relevant to refugees, but not exclusively so. It can affect anyone coming to, or returning to the UK.

If adequate care could be compromised by lack of benefit entitlement for the carer, that arguably breaches both the human rights of the disabled person and the carer. There is an opportunity to remedy this in due course as the Scottish Government introduces Carer’s Assistance, the replacement for Carer’s Allowance.^[8]

Recommendation 1: Scottish Government explores the scope to remedy the mismatch in residency tests between Carer’s Assistance and Disability Assistance in order to promote disabled people’s and carers’ human rights.