The Disability Assistance for Children and Young People (Scotland) Regulations 2021 and the Scottish Child Payment Regulations 2020 (Miscellaneous Amendments) Regulations 2022: SCoSS scrutiny report

4. Re-determination time limits

The draft Regulations add a new situation to the rule that governs when the time limit starts for Social Security Scotland to make a re-determination of Scottish Child Payment.

To challenge a determination about a Scottish benefit, an individual must first ask Social Security Scotland to make a re-determination before they can appeal to the First-tier Tribunal for Scotland. Regulations provide a time limit for Social Security Scotland to make the re-determination. If the agency misses the time limit, then the person has the right to appeal without waiting any further.

The Scottish Government has identified a gap in the provision that starts the time limit running for making a re-determination. The usual rule starts the time limit from the day Social Security Scotland receives a request for a re-determination. There is also a provision that deals with late requests. However, if a request is received that is deemed not to have been made in the right way, and is therefore not a ‘valid’ request, an individual can ask a Tribunal to decide whether it was valid. There is currently no provision to specify a different date for the time limit to start running in such cases other than the default date of the original request.

This gap is remedied for Scottish Child Payment by draft Regulation 3(4). This sensibly starts the time limit running from the day the Tribunal makes the decision that the request was validly made. This gives Social Security Scotland the time they need to make the re-determination. Such cases should be infrequent, but could occur. For example, few people are sufficiently familiar with processes to use the term ‘re-determination’ when asking by phone for a re-determination and are not expected to use formal terms, but this does mean there is potentially scope for Social Security Scotland to misinterpret a request.

The amendment clarifies the policy intention and ensures that processes for re-determination and appeal can be more clearly and consistently applied, in line with expectations in Our Charter.^[9]

The amendment only relates to Scottish Child Payment (SCP). Child Disability Payment (CDP) Regulations and draft Adult Disability Payment (ADP) Regulations already provide for this situation in setting the time limit for making a re-determination. We understand that the Scottish Government plans to lay separate amending regulations for other Scottish benefits such as Best Start Grant mirroring the amendment to SCP.^[10]