Early Years Assistance: illustrative regulations

Part 1 - Introductory and Interpretation

This section specifes the date of commencement and definitions used in the regulations, such as the definition of a partner and how days will be counted. The full text is at Annex A. Interpretation also includes a section on applications.

Applications

Illustrative regulations:

When an application is to be treated as made

3.--(1) An application is to be treated as made on the day it is received by the Scottish Ministers.

(2) For the avoidance of doubt, a thing that purports to be an application is not an application unless it is--

(a) made in the form, and

(b) accompanied by the evidence,

required under section 20(1) of the Social Security (Scotland) Act 2018.

The aim is to make it as easy as possible for people who are entitled to BSG to take up their entitlement. In order to make the system accessible for people with a range of needs and preferences and to maximise take up, there will be multiple application channels for the BSG . Information on how to apply for devolved benefits will be fully and widely accessible in whatever form users need. The detail of these is still to be determined in conjunction with users . One of the key differences between our social security delivery and the existing system will be the strong local presence across Scotland. Local agency staff will provide pre-claims advice and support to people on the benefits it delivers and related support they may be entitled to.

In order to streamline the application process, the BSG and HSV will be promoted and be capable of bieng applied for together. Each BSG payment is treated as a one off grant, without any continuing entilement which means that there is no requirement to notify the Agency of a change in circumstances under Section 31 of the Bill. Where the Agency has verified information from a previous application for HSV or BSG, the intention is that it should be used, where practical and with the applicant's permission, to inform any later determination on HSV or BSG payment. This is in order to reduce the burden of application. However, we anticipate that the time lapse between determinations on HSV and individual BSG payments will often mean that applicants are asked to make an updated declaration for each BSG payment.

Evidence Evidence requirements and processes to underpin collection to establish whether applicants meet eligibility conditions, are under development. This includes opportunities for using existing data sources, including data sharing with DWP and HMRC. Processes for requesting and collecting any additional evidence required to make a decision will also be required. Evidence requirements will be specified on the form but we do not envisage that they will be set out in regulations. This enables the Agency to easily keep step with changes in technology, culture and practice and to amend the application process to take account of users' needs and preferences.

Valid Application There will be certain conditions that need to be met to determine that a valid claim has been made, for example the form in which it is made and evidence required to support the claim. Relevant processes for this and for situations where the form does not meet the requirements will be set out once service design is further progressed. We do not envisage that they will be included in regulations, to allow for a flexible and responsive system.

Second Application Section 20 of the Bill precludes two applications being made in respect of the same life event. We anticipate that there may be situations where two applications might legitimatly be made for the same BSG payment (life event), for example where the applicant has applied at the beginning of an application window and does not meet the eligibility requirements but applies again later in the window, outside the allowed time to request a re-determination, and meets the criteria at that point. We are considering options for providing for this sort of situation.

Date of Application Applications will be assessed based on the eligibility of the applicant on the date of application. The date of application is the date on which a completed application is received by the Agency. For example, the date on which an online application is submitted and received, rather than started and the date on which a paper application is opened and logged rather than the date of signature or posting.

Once service design is further progressed, there may be some further regulations in this area that smooth application processes for applicants and increase efficiency of the social security system by reducing the need to handle applications repeatedly. For example, it may be possible to make provision for situations where an award of qualifying benefit is received after the date of the BSG application but backdated.

Notification of a Determination - Section 22 of the Social Security Bill sets out required content of a notice of determination:

• The determination,
• Reasons for it,
• The right to a re-determination
• The right to appeal to a tribunal

We do not propose to set out further detail on this in regulations. The policy intent is for applicants to have a lasting record of the determination on their application or re-determination that they can use e.g. to discuss with an adviser or to check their rights to re-determination. We need to do more work on the options for meeting this need and will engage with users and welfare rights organisations to come up with a final solution.

The Potential Role of the Charter

The Bill places a statutory duty on Scottish Ministers to develop a Social Security Charter that reflects the key principles set out in section 1 of the Bill. These principles are derived from key aspects of the human right to social security. This idea of a publicly accessible charter, communicating in clear terms what people are entitled to expect from the new system, received strong support both in response to the Consultation on Social Security in Scotland and in wider public and stakeholder engagement. We have since committed to developing the charter in partnership with the people of Scotland, starting from a 'blank sheet of paper' and have made express provision for this on the face of the Bill.

The specific nature and content of the charter will therefore be a product of this co-design process. Subject to the outcome of the co-design process, it is also possible that the commitments to be made in the charter might include specific matters such as various timeframes relating to processing claims and similar indicators.

Schedule 1

Maternity and New Baby Payment

Illustrative regulations:

Eligibility conditions

1. An individual who applies for a maternity and new-baby grant in respect of a child is eligible for the grant if--

(a) the application is made before the deadline set by paragraph 2;

(b) no-one else has received, or is due to receive, a maternity and new-baby grant or sure start maternity grant in respect of the child (but see paragraph 3);

(c) when the application is made, the individual is habitually and lawfully resident in Scotland;

(d) at least one of these statements is true--

(i) when the application is made the individual is, or has been, more than 24 weeks pregnant with the child;

(ii) when the application is made the individual is the partner of an individual who is, or has been, more than 24 weeks pregnant with the child;

(iii) the individual has parental responsibility for the child on the day the application is made;

(e) at least one of these statements is true--

(i) the individual or the individual's partner has (or they both have) been properly awarded, for the day on which the application is made, assistance of a kind mentioned in regulation 8,

(ii) when the application is made, the individual is under 18 years of age,

(iii) on the day that the application is made, either (or both) the individual or the individual's partner is 18 or 19 years of age and a dependent of an individual who has been properly awarded, for that day, assistance of a kind mentioned in regulation 8.

Eligibility will be determined via a series of tests carried out on the date of application. The eligibility conditions are:

(a) The application is received within the relevant application window.

(b) No equivalent payment of an SSMG or BSG has been or is due to be made.

(c) The applicant is habitually resident in Scotland.

(d) The applicant is or is the partner of someone who is going to or has had a baby, or/ meets the responsibility test for the child.

(e) The applicant meets the test for financial circumstances i.e. an award of a qualifying benefit has been made or is a parent who is under the age of 18 or still a dependent of their parent who meets the test for financial circumstances.

These are explained below:

a) Application Windows - To be valid, the application date must be in the relevant window but it can fall at any point in that window. For the Maternity and New Baby Grant this is between the mother reaching 24 weeks of pregnancy to 6 months after the birth of child. This extends the application window by three months by comparison with DWP to allow more time for parents to apply. Where there is a change of responsibility for the child during the first year of its life, the window is extended to 12 months.

b) No award has already been made - SSMG recipients are excluded from receiving a BSG Maternity or New Baby Grant for the same child. Each payment will only be made once per life event unless there is a change in the responsible person (for example the child moves to live with a kinship carer) to someone not named on the first claim, within the application window. In this case, as second payment can be made where the applicant meets the test of being responsible for the child. Usually, this will mean that, where parents split up, a second payment will not be made.

c) Residence - The current policy intention is that eligibility will depend on applicants being habitually resident in Scotland. This is in line with common practice in jurisdictions across the Common Travel Area ( CTA) and in the European Union. We do not propose attaching any residency conditions to the child. This achieves consistency with DWP's approach and mitigates the possibility of gaps in eligibility or double claiming. In practice, residence conditions attached to each of the qualifying benefits may be sufficient to establish Scottish residence and we do not anticipate a significant evidence burden on applicants, especially where they are coming to Scotland from other CTA jurisdictions, in line with the reciprocal approach that is currently taken.

We are aware that some stakeholders believe that ordinary residence is the correct residency threshold for devolved benefits, especially those that are passported from a qualifying benefit. We are open to exploring the benefits and risks of this approach further.

d) Life events and responsibility

The applicant needs be:

• more than 24 weeks pregnant or have been more than 24 weeks pregnant (i.e. have already had the baby). There is no requirement in regulations to seek advice from a health professional as a condition of the grant but applicants will be encouraged to do so if they have not already. Where there is a still birth, a payment will be made regardless of whether the application was made before or after the date of the still birth, within the application window, in order to provide support for mothers who may have incurred expenses and are coping with the loss of a child;

Or/

• the partner of someone in the situation above. Partner and family is outlined in the Interpretation section;

Or/

• have taken on parental responsibility for the child at some point before the date of application.

Parental responsibility for the child - The definition of responsibility for a child is set out in the Interpretation section. We have sought to align with DWP's approach so that the two systems work well together. We considered an alternative approach using a transfer of parental rights and responsibilities in order to simplify the regulations but our initial assessment is that the complexity of family situations does not make this a good fit and that it would be difficult to align with DWP's approach.

Illustrative regulations:

Meaning of parental responsibility

7.--(1) An individual is to be regarded as having parental responsibility for a child on a day if--

(a) one of the following statements is true--

(i) the individual is a parent of the child;

(ii) either the individual or the individual's partner is (or both of them are), on the day in question, an appointed guardian of the child;

(iii) the child is, on the day in question, placed with the individual or the individual's partner (or both of them) by an adoption agency (as defined by section 119 of the Adoption and Children (Scotland) Act 2007);

(iv) either the individual or the individual's partner has (or both of them have) responsibilities for the child on the day in question by virtue of an order of a kind mentioned in paragraph (2);

(b) paragraph (3) or (4) applies to the individual on the day in question; and

(c) on the day in question the child is not being looked after by a local authority within the meaning of section 17(6) of the Children (Scotland) Act 1995.

(2) The following are the kinds of order referred to in paragraph (1)(a)(iv) -

(a) an adoption order under section 28 of the Adoption and Children (Scotland) Act 2007;

(b) a kinship care order within the meaning of section 72(1) of the Children and Young People (Scotland) Act 2014;

(c) a parental order under section 54 of the Human Fertilisation and Embryology Act 2008;

(d) any order granted in a part of the United Kingdom other than Scotland which is equivalent in effect to an order mentioned in sub-paragraphs (a) to (c).

(3) This paragraph applies to an individual if--

(a) the individual; or

(b) the individual's partner,

is in receipt of child benefit in respect of the child.

(4) This paragraph applies to an individual if--

(a) the child normally lives with the individual; and

(b) either--

(i) no-one is in receipt of child benefit in respect of the child; or

(ii) the statement in paragraph (1)(a)(iv) is true.

(5) An individual is to be taken to have acquired parental responsibility for a child on the first day that the individual can be regarded as having parental responsibility for the child in accordance with paragraph (1).

Our intention is to provide a BSG to adoptive parents and kinship carers. The effect of the illustrative regulations is that, while adoptive parents and those who have been awarded a kinship care order can qualify for the BSG, kinship carers who have not sought to formalise the arrangement do not. Kinship carers who have an order in place will not be required to be in receipt of child benefit.

Guardians and people who have taken on responsibility for a child via parental orders in relation to surrogacy arrangements and orders under human fertilization and embryology legislation will also qualify.

While we understand that some children living with other family members who do not have an order in place may benefit from a BSG payment and will continue to look at how individual groups can be reached as our system develops, we need a simple robust check that the applicant is responsible for the child.

We do not propose to pay a BSG to children where relevant costs are met by the local authority, either in residential accommodation or where they are placed with foster parents. Responsibility for the child is a developing area of policy and we will keep it under review as the National Review of Care Allowances and Independent Care Review progresses.

e) Financial Circumstances

As a proxy for being on a low income, BSG payments will be made to people who have been correctly awarded a qualifying DWP or HMRC payment:

Illustrative regulations:

Meaning of references to specified kinds of assistance

8. References to a kind of assistance specified in this regulation are to the following--

(a) income support;

(b) state pension credit;

(c) income-based jobseeker's allowance;

(d) working tax credit;

(e) child tax credit;

(f) income-related employment and support allowance;

(g) universal credit;

(h) housing benefit.

These are listed in the Interpretation section and, while based on DWP eligibility for SSMG, simplify tax credit entitlement and allow for working people to apply for their BSG payment before a child is born rather than waiting until they are in receipt of a child tax credit after the child is born. The monthly variations in UC may mean that it is not clear to the applicant whether they are in receipt of UC in the current month at the time that they apply for the BSG. We are considering possible solutions for this.

Young Parents Parents who are themselves under the age of 18 will not be required to meet the condition of being in receipt of a qualifying benefit. Where the applicant is 18 or 19 and still in approved education or training they will be treated as a dependent of their parent, as set out in the interpretation section. They can apply in their own right but use their parent's qualifying benefit award as evidence of low income.