Winter Heating Assistance (Pension Age) (Scotland): letter to the Scottish Commission on Social Security (SCoSS)

Annex B

Draft regulation amendments

Area of change

Eligibility Criteria

Reason

Eligibility for PAWHP is linked to the individual’s age (reaching state pension age) and their circumstances, including receipt of a relevant benefit, during the qualifying week.

To reflect the changes made to the UK Government's Winter Fuel Payments, regulation 8 has been updated to specify that “An individual is entitled to a relevant benefit on a day in the qualifying week”.

The relevant benefits are outlined in regulation 2(1), and are as follows:

(a) state pension credit,

(b) income-based jobseekers allowance,

(c) income-related employment and support allowance,

(d) income support,

(e) universal credit,

(f) child tax credit or working tax credit (where the award is not less than £26 in respect of the tax year 2024 to 2025).

Area of change

Residency

Reason

Individuals must be Ordinarily Resident in Scotland or habitually resident in any of the countries listed in the schedule on or before the qualifying week. To be eligible for PAWHP someone must:

1. live (is ordinarily resident) in Scotland for at least one day in the qualifying week: or

2. live within an EEA country or Switzerland (in at least one day during the qualifying week) and has a genuine and sufficient link to Scotland.

3. Receive a relevant benefit (or are able to demonstrate entitlement to a benefit payable in the country in which the person is habitually resident that is equivalent to a relevant benefit)

Area of change

Exportability

Reason

The exportability provisions expire on 1 April 2025 to mirror the UK winter fuel payment provisions.

Area of change

Payment Value

Reason

The following payment values are based on age and entitlement to other reserved benefits.

Payment value

Relevant benefits are set out below:

• Pension Credit
• Income-based Jobseeker’s Allowance (JSA)
• Income-related Employment and Support Allowance (ESA)
• Income Support
• Universal Credit
• Child Tax Credits and Working Tax Credits (where the award is not less than £26 in respect of the tax year 2024-25)

A payment is made to an individual or a ‘benefit household’ i.e. a couple in receipt of a joint claim, or are individuals in a polygamous marriage. One payment is made of either £200 or £300 regardless of whether it is an individual, a couple or number of people in a polygamous marriage. If the lead claimant is under 80 but an individual within the joint claim is over 80 then a payment of £300 will be made.

Area of change

Exclusions

Reason

We intend to reflect the current exclusions to entitlement that DWP currently practice in WFP policy: (regulation 4 ‘Persons not entitled to a winter fuel payment’ in Social Fund WFP regs) We intend to regulate for the exclusion for those who are throughout the qualifying week:

a) receiving free in-patient treatment and has been receiving free in-patient treatment for a period of at least 52 weeks ending immediately before the qualifying week;

b) detained in custody (during the entirety of the qualifying week) under a sentence imposed by a court.

c) living in residential care (a care home or an independent hospital) throughout the qualifying week and the 12 weeks immediately prior to the qualifying week

d) one member of a couple where the Secretary of State (on behalf of Scottish Ministers) has made a payment in respect of the qualifying week to the other member of that couple;

e) a member of a polygamous marriage where the Secretary of State (on behalf of Scottish Ministers) has made a payment in respect of the qualifying week to another member of that marriage;

f) someone who has not made a claim for a payment prior to 31 March following the qualifying week (unless that is based on a person becoming entitled to a relevant benefit in respect of any day during the qualifying week i.e. backdated payment of Pension Credit, Universal Credit, Child Tax Credit or Working Tax Credit)

We do not intend to regulate for the exclusion of people in accommodation provided under the Polish Resettlement Act 1947. There are no longer homes in Scotland covered by this and therefore this is not relevant for our policy.

Area of change

Determination of Entitlement

Reason

Determination without application

Our intention is for a determination to be made without the need for an application for the vast majority of clients. Scottish Ministers (DWP on Scottish Ministers behalf) are to determine someone’s entitlement without an application, through use of official records held by the Secretary of State (including data shared by HMRC on tax credit entitlement), in respect of an individual’s age and entitlement to a relevant benefit during the qualifying week. DWP have indicated weekly scans will take place to identify people who have a decision made on a qualifying benefit which results in their back-dated entitlement to a qualifying benefit during the qualifying week. These people will therefore be paid automatically. Scottish Ministers may, on or before the 31 March following the qualifying week, make a payment in respect of the winter following the qualifying week to a person who appears to be entitled to a payment. Where a person becomes entitled to one of the relevant benefits in respect of any day falling within the qualifying week by virtue of a decision made after that week, Scottish Ministers may make a payment to that person in respect of the winter following the qualifying week if it appears that person is entitled.

Determination by application

There may be circumstances in which an individual wishes to apply for assistance or query their entitlement. DWP have indicated that they do not intend to have a publicly available application but that queries to them in relation to an individual’s entitlement will result in a determination being made, which therefore provides relevant challenge rights. We do not therefore intend to regulate for determination by application specifically as the ‘determination without application’ provision should capture this group (based on info available to Ministers).

Area of change

Period for requesting a re-determination

Reason

We are proposing that a re-determination request relating to PAWHP should be made within a calendar month of being notified of the determination. This aligns with DWPs timescales and should streamline the process whilst they deliver on behalf of Scottish Ministers If a request is not made within a calendar month, a request for a re-determination can still be considered at any point up to a year after being notified of the original determination, if there is a good reason for the request being made late. DWP will decide whether the reason provided is acceptable. We propose that, on validation of a request for a re-determination of entitlement to PAWHP, DWP should have 56 working days, beginning with the day DWP validates the request, to make the fresh determination. This period is to be counted from the next working day after DWP receives a re-determination request in the format required. If there is a failure to make the re-determination within the 56 day period, the individual will be informed that they have a right to appeal to the First-tier Tribunal against the original determination.

Area of change

Residence in Care Homes and Independent Hospitals

Reason

An addition to regulation 2 (specifically regulation 2(3)) has been made to clarify the position of those temporarily staying in a care home or independent hospital. The regulations now state that an individual is only treated as living in a care home or independent hospital where they live there throughout the qualifying week and for the 12 weeks immediately preceding the qualifying week. This does not mark a change in the policy, but is solely included to clarify the definition of living in a care home or independent hospital.

Similarly, we have also updated the definition of ‘independent hospital’ within Regulation 2 to remove reference to the English and Welsh definitions

Area of change

Irish Reciprocal Agreement

Reason

Regulation 9(1)(b)(ii) has been updated to include the Convention on Social Security between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland signed at Dublin on 1st February 2019, within the listed international residency agreements. This does not mark a change in residency policy, but rather amends the previous error in the omission of this agreement.

Area of change

Gibraltar Agreement

Reason

Regulation 9(1) (b) (ii) has been updated to remove the provision (ee) ‘the agreement constituted by the exchange of letters set out in the schedule of the Social Security (Gibraltar) Order 2024 (a). This was included in error and is being removed to align with the WFP residency provisions for those living abroad.

Area of change

Exclusions for those in custody during the qualifying week

Reason

Following identification of a drafting error during SCoSS scrutiny, regulation 5(b) has been updated to align with the policy intent.