Disability and Carer Benefits Expert Advisory Group: Scottish Carer's Assistance - letter to Cabinet Secretary for Social Security and Older People

Dear Shirley-Anne,

Carer’s Assistance

Thank you for your request to provide advice on Scottish Carer’s Assistance (SCA) in your letter of 12 February 2020. We are pleased to offer our advice on this matter below.

We welcome the commitment by the Scottish Government to ensure safe and secure delivery of the newly devolved benefits, and to improve the claiming process for all recipients. We understand that our advice may incur risks, implications and challenges for the Scottish Government. These will be made explicit in this advice note and we aim, where possible, to signpost a proposed solution.

We have worked with officials to ensure that our advice is informed by information available at this time and relevant to the current policy landscape. We met with officials on 29 September 2020 to discuss this issue. We would like to especially thank the officials who worked with us on this policy area. Their input was clear, concise, and greatly aided us in focusing this advice.

Clearly, information and the current policy landscape may change in ways that cannot be foreseen at this time, so the advice we give now is with the caveat that this too may change in light of developments.

We set out below some issues arising from our discussions to which we wish to draw to your attention. Our recommendations are summarised at the end of this letter.

Outcomes for Carer’s Assistance

We have been asked to provide this advice at the early stages of developing this payment. As a result, we are able to reflect on some of the big questions officials are currently considering. One of these fundamental questions, is “what do we wish Carer’s Assistance to achieve?” We believe to answer this question, we must first discuss Carer’s Allowance, the UK corollary to the new benefit, and its history.

In 1976, Invalid Care Allowance (ICA) was introduced. This was the first benefit developed for carers, and it was only available to unmarried people. The stated purpose of ICA was to “provide a measure of income maintenance for a man or single woman who had forgone the opportunity of full-time employment in order to care for a severely disabled relative." In 1986, ICA was opened up to married men and women after a successful sex discrimination challenge in the European Court. In 2003, the name of the benefit was changed to Carer’s Allowance, restrictions on claiming when aged over 65 were removed and an 8 week run-on if the cared for person died was introduced. Otherwise, apart from award amounts and earnings thresholds being uprated, the benefit has remained largely unchanged.

This history is important because it highlights that little has changed for carer benefits since they were originally introduced. Moreover, it is important to note that while the stated aim of ICA/CA was to help single men and women, women have historically and currently claimed ICA/CA at a much higher rate than men. The most recent statistics show that nearly seven in ten (70%) of CA recipients are women. Recognising this disparity and that CA is sometimes the only income many of these women receive that is purely theirs (i.e. it is not merely part of the household income) is, in our view, one key to understanding what the outcomes for SCA should be.

Another important point to highlight is that while the stated purpose of ICA/CA is to “provide a measure of income maintenance” for carers who have given up employment to care, and CA is defined as an “earnings-replacement” benefit, the current rate of £67.25 per week is much lower than the other benefits meant to support people who are unemployed. For example, contributory Jobseekers Allowance (JSA) and Employment and Support Allowance (ESA) (both also considered “earnings-replacement” benefits) are paid at a rate of £74.35 per week, more than 10% higher.

Furthermore, JSA and ESA are specifically designed to be temporary amounts meant to see people through until they are next able to work, not long-term support to maintain a reasonable income. On the other hand, Carer’s Allowance is often claimed for a very long time. Recent statistics show two thirds of claimants (70 per cent) have been receiving Carer’s Allowance payments for over two years, while 39 per cent have been receiving Carer’s Allowance payments for over five years (Ibid). This is often the case especially when parents are caring for their disabled children, which can often last well into the disabled person’s adult life.

Another point to consider is that if carers were paid UK minimum wage (£8.72 per hour) for each of the mandatory 35 hours per week of caring necessary to maintain a CA claim, they would be due £305.20 per week. This suggests that the stated purpose of CA and the reality are not in sync. While we acknowledge and welcome the Scottish Government’s commitment to increasing the value of CA to that of JSA via the Carer’s Allowance Supplement, and the further Coronavirus supplement payment in June 2020, the point remains that the actual purpose of CA, when taking into account its value, is unclear.

Finally, it is important to note that older carers who receive state pension will often miss out on receiving Carer’s Allowance altogether due to the overlapping benefit rules. These carers report frustration that, though they still have the same caring responsibilities they had before they reached pension age, they lose this recognition of their efforts.

This is all to say that determining the intended outcomes for SCA is not a simple matter and we cannot overly rely on the stated purpose of CA. What is clear is that to the people who receive CA, the money is very important, both financially and as a recognition from government of the great effort carers undertake every day.

Recommendation 1

When developing the stated outcomes for Scottish Carer’s Assistance, the Scottish Government should not overly rely on the stated purpose of the reserved Carer’s Allowance. Instead, the outcomes most important to people who receive Carer’s Allowance should be sought and used as a foundation.

Key themes to explore include:

• the importance of CA to women
• CA as an individual income
• CA as recognition of the efforts of carers

Human rights

Key to developing any social security outcomes should be a focus on social security as a human right. A robust assessment of policy and legislative proposals to ensure compliance with the international human rights standards is essential. As social security is a matter of public spending as well as individual income, it is critical that the policy adheres to the requirements in the International Convention on Economic and Social Rights that requires the “maximisation of available resources for the progressive realisation of rights”. The right in this case is to social security and consequently other rights.The principles set out in the Social Security (Scotland) Act 2018 acknowledge that “social security is itself a human right and essential to the realisation of other human rights”. It is therefore paramount that the development of each individual benefit takes a human rights based approach when considering outcomes. We suggest it would be useful to reference international guidance documents produced by the United Nations Committee on economic, Social and Cultural Rights or the United Nations Special Rapporteur on Extreme Poverty and Human Rights. We also suggest the general principles to the human rights approach set out in the recent report by the Scottish Campaign on Rights to Social Security (SCORSS) on disability benefits might be useful.

Recommendation 2

The Scottish Government should take a human rights based approach when developing the outcomes for Scottish Carer’s Assistance. International guidance documents will provide useful insights in this regard.

Social care

The interplay between CA and state provided social care must also be carefully considered. A Carers UK study estimated that unpaid carers in Scotland saved over £10.8 billion in Government spending in 2015. This effort from unpaid carers is likely to only increase as a result of the COVID-19. It was estimated in June that nearly 400,000 additional people in Scotland were caring for older, disabled or seriously ill relatives or friends since the start of the COVID-19 pandemic.

On top of this, the contribution that carers make has been used to offset or reduce the amount of care provided by some local authorities which are dealing with high levels of need. More than half of interviewees told the Scottish Human Rights Commission they had experienced a reduction or complete withdrawal of care and support in the home since the start of the outbreak (see also Covid in Scotland: 'My brother stopped eating after home care cuts', BBC News, October 2020). Glasgow Disability Alliance and Inclusion Scotland also found that at the outset of the lockdown thousands of care packages were cut or reduced and carers, families and communities were expected to pick up the shortfall.

Moreover, our understanding is that social care is not offered to individuals unless their circumstances are “critical or substantial” in some local authorities and “critical“ only in others.

When considering how to improve outcomes for carers, how well social care is meeting the rights, needs and preferences of people and communities must be taken into account. As currently stated, the purpose of SCA is to “support carers to protect their health and wellbeing, so they can continue to care if they so wish, and have a life alongside caring.” (emphasis added). It is important therefore to have a solid understanding of the relationship between unpaid carers and social care to ensure that unpaid carers are not expected to make up for inadequacy in the social care system. Similarly, it is important that SCA adequately protects the health and wellbeing of unpaid carers so as to prevent the necessity of social care where an unpaid carer would prefer to offer the care themselves.

Recommendation 3

The relationship between unpaid carers and social care must be well understood when considering how to improve outcomes for carers. It is important that unpaid carers are not expected to take on or maintain caring roles due to inadequacies in the social care system.

Equalities

As discussed above, there is a very clear pattern to CA when it comes to gender, and this must be well understood and carefully considered when developing SCA. The relationship between caring, carers and the person in receipt of care also needs to be valued and protected as an affective relationship but also one that preserves the autonomy of the individuals.

There are also a range of inter-relations and intersectional dimensions to consider:

• how relationships and financial circumstances vary over time, and the different contexts for older carers and their care and health needs
• going beyond previous cultural norms, to ensure the diverse characteristics and experiences of carers are understood and reflected fully in policy making
• recognising that many carers are disabled people themselves

What is less clear is how other protected characteristics are affected by how CA is currently conceived and administered. A large part of this problem, we understand, is a lack of relevant equalities data regarding carers. We have addressed this lack of data in previous advice, but will reiterate that key to understanding where improvements need to be made is collecting and analysing relevant data. Where such data is unavailable from the Department for Work and Pensions (DWP), the Scottish Government must endeavour to identify the gaps and address them. We suggest the best way to do this is to work closely with organisations and researchers working with groups with protected characteristics.

Recommendation 4

There are clear equalities dimensions to consider when developing Scottish Carer’s Assistance, especially with regards to gender, disability and race/ethnicity, to ensure an improved standard of living and quality of caring relationships. This is key to avoiding unequal impacts and experiences of the social security system.

Recommendation 5

Where there are gaps in data regarding protected characteristics, the Scottish Government must seek to close these gaps. Working closely with organisations that work with these groups is an important way to work towards this aim.

Interactions with reserved benefits

CA interacts with reserved benefits in a number of ways: entitlement to CA can increase payment of means tested benefits, being a carer can reduce conditionality, income from CA counts as income when calculating benefits entitlement and in some situations claiming CA can reduce the income of the severely disabled person who is being cared for.

Being eligible for CA gives applicants entitlement to premiums in reserved means-tested benefits or a carer element in Universal Credit (UC). The carer element of UC is also available to some carers who do not qualify for CA and there is no requirement to claim CA to get the carer element in UC. Claiming CA can mean the severe disability premium is no longer paid to the severely disabled person who is being cared for, reducing their income, and means they may be required to transfer to UC. Meeting the eligibility conditions for CA affects the conditionality regime of means-tested benefits, including UC, meaning eligible recipients are not required to, for example, look for work or undertake work preparation activities and cannot therefore be sanctioned.

It is important that systems are in place to ensure accurate transfer of information between DWP and Social Security Scotland (the Agency) to ensure these interactions remain seamless for the claimants (There are lessons to learn from the problems caused when the DWP’s DLA-C systems stopped talking to HMRCs Child Tax Credit system. This caused families to lose out on additional Child Tax Credit payments, which took several years to resolve). A recent case has challenged the idea that a claimant is required to report changes to different offices with the DWP – “on the basis of contemporary standards of computer systems”. It states that, “claimants are entitled to assume that when they receive their decision in relation to one benefit, the Department’s modern computerised systems will not just have communicated the decision to them, but also to any other branches of the Departmental administration where that decision has an impact.” This case related to the Northern Ireland Department for Communities rather than the DWP, but such cases make it clear that in future claimants may be able to rely on the DWP passing information between benefits, rather than requiring claimants to report new benefit awards themselves. If this is the case, then it will mean that individuals who receive some of their entitlements from DWP and some from the Agency will be at a disadvantage unless sufficient legal and IT protocols are put in place to ensure they do not lose out.

It is also important to note if the eligibility criteria (such as the definition of being ‘gainfully employed’) for SCA diverge from the current eligibility for CA – as is likely to happen over time - this could have an impact on the interaction between the SCA and reserved benefits.

Consideration also needs to be given to the way SCA is treated as income for means-tested benefits. At present CA is treated as income, therefore someone’s means-tested benefit is reduced by the same amount as the CA (carers who received means tested benefits and carers allowance are still better off because additional carers premiums or elements are payable). The Carers’ Allowance Supplement is disregarded for means-tested benefits. This is relatively straightforward, both to administer and check, because the claimant received two separate payments – weekly CA and twice-yearly CAS (three yearly payments were available this year due to the introduction of the Coronavirus Carer’s Allowance Supplement). If SCA is paid at a higher rate than CA, it will make such calculations more complex, both for the DWP and for advisers and individual’s doing benefit checks, and require complex IT and legal protocols.

Therefore, careful consideration needs to be given to all the interactions between the Scottish and reserved benefits system to ensure individuals in Scotland don’t lose out. Officials should consider the full impact of the interactions with the current GB benefit system when undertaking EQIAs and their obligations under the Fairer Scotland Duty.

These interactions and impacts must be well understood and carefully considered when developing the new SCA. The examples above are far from comprehensive and we would be pleased to revisit this issue in the future when SCA policy is further along. It is imperative that no one is disadvantaged due to a substantive change that has unforeseen consequences.

We are keen to revisit this point, potentially with the help of our technical subgroup, once the policy options for substantive changes are further developed.

Recommendation 6

The interactions between Carer’s Allowance and other reserved benefits must be well understood and carefully considered when developing the new Scottish Carer’s Assistance. How people who receive reserved benefits will be advantaged or disadvantaged by specific changes to Scottish Carer’s Assistance must be a key consideration when developing those changes. We are keen to revisit this point, potentially with the help of our technical subgroup, once the policy options for substantive changes are further developed.

A specific issue that comes up in the reserved system that we would like to see addressed is the practice of DWP stopping someone’s disability benefits if they claim CA, citing that one cannot provide 35 hours of care and meet the criteria for disability benefits. We’ve heard examples of social workers advising claimants to reconsider claiming CA for this reason. While the DWP can take into account the award of Carer's Allowance, an award of Carer's Allowance of itself will not preclude an award of PIP (PB v SSWP (PIP) [2017] UKUT 493 (AAC). To prevent this from happening in the Scottish system, we suggest this should be made clear in relevant guidance.

Recommendation 7

It should be clearly stated in relevant benefit decision making guidance that providing care is not inconsistent with meeting the eligibility criteria for disability benefits.

Lessons to learn from Carer’s Allowance

While we believe the stated outcomes of CA should not be focused on too heavily when developing the outcomes for SCA, there are important lessons to learn from CA.

Applications

There are certainly some things that CA gets right. For example, the application process is thought of as fairly straight forward and in the experience of our members and their networks decisions are made quickly so awards are paid out fast. The CA application is easily available online or in paper form. People, including unpaid carers, say they want a choice of options of how to complete and submit application forms (e.g. online, paper, in-person and over the phone) and communications support made readily available where required. They also want the option of completing forms at home, with personal support if required, and the ability save online applications and continue them later.

The application itself does not ask particularly intrusive questions and generally there is less of a feeling of needing to prove your eligibility as there is for many other benefits. For example, no further evidence of caring 35 hours per week is required, the applicant’s word that they do is sufficient. We believe this trust-based decision making process is something that should carry into SCA and across Scottish social security generally.

Recommendation 8

Creating an easily accessible straightforward application based on trust will be an important part of getting Scottish Carer’s Assistance right. It is important that claimants are offered multiple methods of applying. 

Eligibility rules, premiums and overpayments

There are also many things about CA that could be improved. While easy to claim, the eligibility rules for CA and the way it interacts with reserved benefits is complicated. This can be a barrier to potentially eligible applicants who are reluctant to claim due to this complication.

For example, people who are in “full time education” are ineligible for CA. However, “full time education” in the context of social security has a very specific meaning and many people who are taking classes are indeed eligible. This means both that people may be missing out on CA and those in receipt of CA may be unnecessarily reluctant to pursue higher education for fear of losing their award.

Similarly, the inflexible earnings threshold of £128 per week means that CA recipients are often reluctant to take on work or more work for fear of losing their CA award. It also means that those who do work have to constantly provide evidence of earnings to prove they are not making too much. This is especially a problem for those with fluctuating incomes who may be put off from applying to CA due to the uncertainty of their earnings. The cliff edge of the earnings threshold is particularly problematic, when even small additional amounts of earnings cause the loss of the whole benefit amount. Annual uprating of the threshold should be able to deal with across the board wage increases, for example an increase to the national minimum or living wage, which highlights the significance of Scottish uprating. However, small increases in individual wages will continue to be problematic unless the cliff edge is addressed.

How the carer premiums work is also complicated to potential applicants, with many understanding correctly that CA is taken off their means tested benefits pound for pound, but not understanding that the premiums they receive make them better off overall. This can particularly affect older carers, many of whom are not eligible to actually receive CA due to the overlapping benefit rules, who may not understand that having underlying entitlement to CA - which requires claiming CA even though no payment will be made - can give them access to increased premiums in other means-tested benefits they may be entitled to, like Pension Credit.

Finally, because the law allows the DWP to recover overpayments, people are sometimes reluctant to claim for fear they will make a mistake in this complicated system and accrue large debts as a result.

Recommendation 9

Developing simple rules and application processes that do not deter applicants from pursuing education, work, or applying for Scottish Carer’s Assistance in the first place, will be key.

Employment and education opportunities

The discussion above highlights an important point about the place of education and employment in the lives of carers. Being a full time carer and trying to maintain employment or education is challenging in its own right. Trying to navigate the complexities described above on top of that is, in our view, counterproductive to improving outcomes for carers. The Scottish Government should surely wish to see carers flourish in employment or education. Young carers are especially vulnerable to these impacts, as missing out on education and employment prospects early in their lives can have lasting implications for the rest of their lives. To this end, when considering outcomes for carers, we suggest supporting carers to achieve a proper balance between caring responsibilities and employment and education opportunities should be a priority.

This is not simply a moral argument - it should be considered important preventative spending. Carers who are able to manage work and care not only save the Government from significant social care costs, they provide tax revenue. Moreover, supporting carers to pursue education, employment and training will contribute to Scottish Government targets around reducing child poverty – e.g. parents of disabled children who claim Carer’s Allowance - and help address other National Performance Framework targets around, for example, fulfilling potential. Similarly, this approach is consistent with other Scottish Government priorities as exemplified by, for example, Fair Work and Carer Positive initiatives, and the Scottish Business Pledge which promote flexible working that is properly flexible and the norm, not an exception.

Recommendation 10

Ensuring carers are able to balance their caring responsibilities with opportunities to pursue appropriately flexible employment and/or education should be a priority when developing Scottish Carer’s Assistance.

Variations in care

One feature of CA that warrants closer examination is the fact that there is no recognition of the differences in quantity or quality of care provided, including care for more than one person. Someone providing 70 hours of intensive care receives the same benefit award as someone who provides 35 hours of less intensive care.

We are wary to suggest that different kinds of care should be “ranked”, for example providing non-physically intrusive caring (e.g. for someone with a mental health problem) may be just as emotionally taxing to the carer as more intrusive physical care. However, we believe this is an issue that warrants further investigation and consideration.

Of course, it is important that this point is balanced carefully with the discussion above regarding the ease and straightforward nature of CA claims. Any consideration of making SCA more flexible and responsive to the different circumstances of carers should be careful to do so in a way that maintains the straightforward, unintrusive and trust-based nature of the CA application as much as possible.

This is another issue we would be keen to revisit in future when policy development is further along.

Recommendation 11

How differences in the quantity and quality of care might be recognised in Scottish Carer’s Assistance merits further exploration. However, any mechanism for doing so must be balanced against ensuring eligibility rules are straightforward and applications are easy to make.

Post care support

Under the CA rules, when someone stops caring because the cared for person dies, the CA recipient can continue to receive CA and any corresponding premiums for 8 weeks. Whether this is the right amount of time and whether this run on should be available in other circumstances when caring comes to an end is something that should be looked at when developing SCA.

Furthermore, apart from the run-on, there is, to our knowledge, no further support offered. We suggest at this difficult time of transition the Scottish Government should ensure bereaved carers are connected with other support services to help them transition to a life where they are not a carer. This will be especially important for individuals who have been a carer for a long time, often in intensive and psychologically demanding roles and, potentially in part due to the difficulties discussed above, have not pursued employment or education for a long time.

Recommendation 12

The 8 week run-on period provided for in CA should be reviewed when developing SCA. Moreover, the Scottish Government should put processes in place to link carers whose caring has ended with support to help them transition to a life where they no longer provide care.

Conclusion

Unpaid carers provide an invaluable service: one that saves the Government potentially billions in formal social care and improves the lives of many disabled people. The Scottish Government has an opportunity to more properly recognise this great contribution.

Carer’s Allowance is far from perfect, but there are key things to learn from it. We understand that there are limits to what can be changed due to the realities of first achieving a safe and secure transition, but hope the Scottish Government will test these boundaries while aiming for a Scottish Carer’s Assistance with clear and achievable goals that better reflect the contributions of unpaid carers in Scotland.

We appreciate the opportunity to discuss SCA at the very early stages of policy development and would welcome the opportunity to consider SCA again when the policy is further advanced.

Recommendations

Recommendation 1

When developing the stated outcomes for Scottish Carer’s Assistance, the Scottish Government should not overly rely on the stated purpose of the reserved Carer’s Allowance. Instead, the outcomes most important to people who receive Carer’s Allowance should be sought and used as a foundation. 

Key themes to explore include:

• the importance of CA to women
• CA as an individual income
• CA as recognition of the efforts of carers

Recommendation 2

The Scottish Government should take a human rights based approach when developing the outcomes for Scottish Carer’s Assistance. International guidance documents will provide useful insights in this regard. 

Recommendation 3

The relationship between unpaid carers and social care must be well understood when considering how to improve outcomes for carers. It is important that unpaid carers are not expected to take on or maintain caring roles due to inadequacies in the social care system.

Recommendation 4

There are clear equalities dimensions to consider when developing Scottish Carer’s Assistance, especially with regards to gender, disability and race/ethnicity, to ensure an improved standard of living and quality of caring relationships. This is key to avoiding unequal impacts and experiences of the social security system. 

Recommendation 5

Where there are gaps in data regarding protected characteristics, the Scottish Government must seek to close these gaps. Working closely with organisations that work with these groups is an important way to work towards this aim. 

Recommendation 6

The interactions between Carer’s Allowance and other reserved benefits must be well understood and carefully considered when developing the new Scottish Carer’s Assistance. How people who receive reserved benefits will be advantaged or disadvantaged by specific changes to Scottish Carer’s Assistance must be a key consideration when developing those changes. We are keen to revisit this point, potentially with the help of our technical subgroup, once the policy options for substantive changes are further developed. 

Recommendation 7

It should be clearly stated in relevant benefit decision making guidance that providing care is not inconsistent with meeting the eligibility criteria for disability benefits. 

Recommendation 8

Creating an easily accessible straightforward application based on trust will be an important part of getting Scottish Carer’s Assistance right. It is important that claimants are offered multiple methods of applying.

Recommendation 9

Developing simple rules and application processes that do not deter applicants from pursuing education, work, or applying for Scottish Carer’s Assistance in the first place, will be key. 

Recommendation 10

Ensuring carers are able to balance their caring responsibilities with opportunities to pursue appropriately flexible employment and/or education should be a priority when developing Scottish Carer’s Assistance. 

Recommendation 11

How differences in the quantity and quality of care might be recognised in Scottish Carer’s Assistance merits further exploration. However, any mechanism for doing so must be balanced against ensuring eligibility rules are straightforward and applications are easy to make.

Recommendation 12

The 8 week run-on period provided for in CA should be reviewed when developing SCA. Moreover, the Scottish Government should put processes in place to link carers whose caring has ended with support to help them transition to a life where they no longer provide care.

I hope this is helpful. I look forward to your response and we would be pleased to discuss this further with officials.

With best wishes,

Dr. Jim McCormick

Chair