Winter Heating Payment: response to SCoSS Scrutiny of regulations

Letter from Ben Macpherson, Minister for Social Security and Local Government to the co-chairs of the Scottish Commission on Social Security (SCoSS) detailing the Scottish Government’s response to SCoSS’ scrutiny report of the draft Winter Heating Assistance (Low Income) (Scotland) Regulations 2023.

Ministerial - letter responding to SCoSS recommendations

Minister for Social Security and Local Government

Ben Macpherson MSP

T: 0300 244 4000


Judith Paterson and Mark Simpson
Scottish Commission on Social Security (SCoSS)
Victoria Quay

By email to:

Copied to:

16 November 2022

Dear Judith and Mark,

Thank you for your scrutiny report of 29 August 2022 on the Winter Heating Assistance (Low Income) (Scotland) Regulations 2023.

Please find attached a copy of the Scottish Government's response to your report on the proposals for the regulations and recommendations set out in the annex.

I have accepted or partially accepted all but one of the recommendations you have made, and have noted your observations. I am not able to accept Recommendation 5. As you will know, following the consultation on Low Income Winter Heating Assistance (now known as Winter Heating Payment) I considered a number of options to change aspects of the benefit which were addressed in the Scottish Government's response to the consultation analysis report.

I note in your report in your Recommendation 9 that you refer to a difference in treatment between people in-work in receipt of Universal Credit and those in-work in receipt of legacy benefits, and I would like to provide some context as to why the policy has been developed as it has.

When we committed to introducing our new Winter Heating Payment, it was done on the understanding the eligibility would be based on the same qualifying benefits which are currently used to establish eligibility for Cold Weather Payment. This was to ensure that support is targeted towards low income households that are most vulnerable, who have additional heating expenses because of the age of someone within the household or because of having someone disabled within the household. As part of our policy development we did consider extending eligibility to those in receipt of Universal Credit and who are in work. However, following this consideration, I am satisfied that the policy, and its impacts, are proportionate. Furthermore, it would not be possible to deliver any changes to eligibility ahead of launch of the benefit, and change would be unlikely to be possible ahead of legacy benefits being replaced by Universal Credit in 2024.

As we rely on DWPdata to then deliver Winter Heating Payment, we are limited to how we identify eligible people; it would not be feasible to separate out in the DWP data the people in-work from out of work legacy benefit recipients, and certainly not before the first payments of Winter Heating Payment in February 2023. A blanket extension to those who are in receipt of Universal Credit and in-work (over and above the entitlement to those who have a disabled child whose Universal Credit award includes an amount under section 10(2) of the Welfare Reform Act 2012) would extend eligibility to people who have not been identified as most vulnerable. Without a cap on the number of hours that someone in receipt of Universal Credit could work, extending to this in-work group in full would create an inequity with those in receipt of legacy benefits. It would also extend the scope of those eligible for support to a group who have a higher level of income, adding to the cost and caseload, and Winter Heating Payment would no longer be targeting those most vulnerable, as is our intention.

Therefore, whilst we have not been able to make changes to extend eligibility to a wider group or increase the value of the payment, we have committed to reviewing the eligibility criteria following the launch of Winter Heating Payment. We have also retained the ability to legislate for additional payments to be made should the need arise and the money be available to do so. I'm sure you will agree that we need to ensure that any money available is provided to those most in need this coming winter, and our new reliable payment provides an excellent mechanism for doing so.

Following further work throughout the summer there are a few additional changes that have been made to the regulations, which I would like to make you aware of. These are set out below.

Qualifying week

As you'll be aware we agreed to move the qualifying week forward from the initial proposed timescale of September to a week in November. We drafted our regulations with the intention of this falling on the week running from the third Monday in November. You will also be aware we have committed to exploring the feasibility of moving the February payment date forward in winter 2023-24, following the delivery of Winter Heating Payment from February 2023, to address some of the concerns raised during our consultation. We now consider the optimal date for the qualifying week to be the week beginning on the first Monday in November. Whilst this does increase the gap between the qualifying week and payment for delivery, it is necessary in order to future proof our regulations for a potentially earlier payment in later years.

Alternative accommodation

We have made an additional change to the Winter Heating Payment regulations to address a difference in treatment of people residing in alternative accommodation (as set out in the previous draft regulation 4(4)) during the qualifying week, which we believe was incompatible with Article 14 of the European Convention on Human Rights (ECHR). We have removed the exclusions in the initial draft regulations, to ensure that if someone is in alternative accommodation, such as a private hospital or care home, during the qualifying week then they will continue to receive the Winter Heating Payment. This change acknowledges that a person's situation could change during the winter months, resulting in their return home, but also acknowledges that, despite their location during the qualifying week, such persons, who are likely to be very vulnerable, may still be responsible for energy costs and therefore are likely to need additional support.

Winter 2022/23 Payment Schedule

As you know It is our intention to commence payments to the 400,000 clients who will be eligible for Winter Heating Payment from February 2023. This will be the largest single payment made to clients by Social Security Scotland to date. In order to manage the volume of payments, Social Security Scotland will make these payments to clients in batches, ensuring that this is done as quickly and safely as possible, however this may take a number of weeks to complete.

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 throughout the process and in helping to scrutinise the regulations.

I have copied this letter to the Social Justice and Social Security Committee and the Delegated Powers and Law Reform Committee.

Yours sincerely,

Ben Macpherson



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