Best Start Grants and Scottish Child Payment (Miscellaneous Amendments) Regulations 2021 - draft: SCoSS scrutiny report

3. Competing claims in the current Regulations

The SCP and various forms of BSG are income supplements awarded to families with dependent children and in receipt of a qualifying low-income benefit. BSGs are a form of early years assistance within the scope of section 32 of the Social Security (Scotland) Act 2018. They were established by the Early Years Assistance (Best Start Grants) (Scotland) Regulations 2018 – referred to in this report as the BSG Regulations. These Regulations predate the establishment of SCoSS, but amendments fall within the scope of our pre-legislative scrutiny function. The grants take the form of one-off payments at particular milestones in a child's life that may result in specific costs – a pregnancy and baby grant, an early learning grant and a school-age grant. SCP is a top-up to several UK benefits within the scope of section 79 of the 2018 Act. It was established by the Scottish Child Payment Regulations 2020 – referred to in this report as the SCP Regulations. These regulations were scrutinised by SCoSS in draft form before being laid before the Scottish Parliament^[7] and SCoSS members gave evidence to the Social Security Committee during its scrutiny.^[8]

Both SCP and BSG are passported awards to recipients of child tax credit, income-based jobseeker's allowance, income-related employment and support allowance, income support, state pension credit, universal credit or working tax credit. Housing benefit is a passporting benefit for the purposes of BSG only. To be entitled to an award, an individual must in most cases be in receipt of one of the passporting benefits and generally be responsible for a child who is a dependant of the individual or their partner. A child is considered to be a dependant of an individual if the individual has an award of child tax credit, child benefit, state pension credit or universal credit that recognises their responsibility for the child, or if a kinship care arrangement exists, or (for BSG only) another arrangement such as placement for adoption exists.^[9]

The SCP Regulations recognise the possibility that competing claims might be made in respect of the same child. In the event that this happens, paragraph 5 of the Schedule stipulates that each potential recipient's entitlement must be determined before a decision is made about which (if any) is to receive the award. Paragraph 5(4) sets out a hierarchy of factors to be considered in order to determine which individual prevails. The hierarchy is:

1. If one individual has been awarded child tax credit, state pension credit or universal credit in respect of the child, that individual has priority.

2. If no-one has been awarded child tax credit, state pension credit or universal credit in respect of the child, but one individual has been awarded child benefit, that individual has priority – unless another individual is a kinship carer for the child, in which case the kinship carer will have priority.

3. If both individuals are kinship carers for the child but neither has been awarded child tax credit, state pension credit, universal credit or child benefit in respect of the child, then the individual whose entitlement is to be determined first has priority.

In all cases, Social Security Scotland must, at the outset, establish the entitlement of the individual whose entitlement is to be determined first, before moving on to consider any competing claim. Which individual is due the first determination depends on who was first to apply, or was the first individual whom Social Security Scotland became aware of a need to make a determination on without application. The draft Regulations amend the criteria used to prioritise competing claims in paragraph 5 of the Schedule to the SCP Regulations.

The BSG Regulations currently contain no explicit provision about competing claims, but do allow a second individual to become entitled to a grant in respect of a child after a grant has already been made to someone else, if the child's care arrangements should change (Schedule 2, para 1(b) and para 3, and equivalent provisions in Schedules 3 and 4). The draft Regulations insert a new provision (paragraph 6) into Schedule 1 to the BSG Regulations that largely (although not entirely) reflects paragraph 5 of the Schedule to the SCP Regulations, in their amended form.

The rules governing multiple determinations in respect of the same child differed slightly in the draft SCP Regulations referred to SCoSS for pre-legislative scrutiny, compared to the version in the Regulations as ultimately made. In our scrutiny report, SCoSS noted the potential for confusion about who is entitled to an award, particularly in the aftermath of parental separation.^[10] Recommendation 11 stated^[11]; 'The Scottish Government should ensure the Regulations and guidance are clear on how competing applications will be resolved, including any right of appeal that the unsuccessful applicant might have, taking into account the fact that one applicant might not be aware of the other application.' The Scottish Government responded^[12] that it had established its hierarchy of factors indicative of responsibility for a child to take account of the fact that universal credit child element, child tax credit and pension credit child addition are regarded as 'a more robust test of responsibility' than child benefit.