Suspension of Assistance (Disability Assistance for Children and Young People) (Scottish Child Payment) (Scotland) Regulations 2021 - draft: SCoSS scrutiny report

1. Introduction

The Scottish Commission on Social Security (SCoSS) is pleased to present its scrutiny report on the draft Suspension of Assistance (Disability Assistance for Children and Young People) (Scottish Child Payment) (Scotland) Regulations 2021. These amend the Disability Assistance for Children and Young People (Scotland) Regulations 2021 (SSI 2021/174, hereafter the DACYP Regulations)^[1] and the Scottish Child Payment Regulations 2020 (SSI 2020/351, hereafter the SCP Regulations). The purpose of the amendments is to empower Scottish Ministers to suspend payment of Child Disability Payment (CDP) or Scottish Child Payment (SCP) in specified circumstances.

Amendments to the Social Security (Scotland) Act 2018

It was not possible to make provision for the suspension of payments in the original DACYP and SCP Regulations because the Social Security (Scotland) Act 2018 (2018 asp 9), as enacted, did not provide for the suspension of payment of any form of social security assistance. The Social Security Administration and Tribunal Membership (Scotland) Act 2020 (2020 asp 18) amended sections 51 and 54 of the 2018 Act and inserted a new schedule 11. These empower Scottish Government to make Regulations providing for the suspension of social security payments within the parameters specified by the 2018 Act (as amended). The draft Regulations serve to amend the DACYP and SCP Regulations so that payment of awards may be suspended in accordance with the Act. The Act envisages the suspension of payments in three circumstances, although only two of these will ultimately be reflected in the Regulations:

• The first scenario (Schedule 11, para 1(1)(a)) is when Social Security Scotland is carrying out a scheduled review of an award to which the claimant has an ongoing entitlement, or otherwise considering whether they are required to make a determination without application in relation to an ongoing award, in accordance with section 37, 43 or 52 of the Act. If Social Security Scotland requires further information 'material to the making of the determination', it can request this from the claimant. If the claimant fails to provide this information, section 54 allows Social Security Scotland to suspend payment of assistance and subsequently move to terminate the award on the basis that the eligibility criteria are no longer fulfilled. Under section 54 as originally drafted, there was little option if information was not forthcoming but to end entitlement to all or part of the award.
• The second scenario (Schedule 11, para 1(1)(b)) is when arrangements have been made to pay social security assistance to which an individual is entitled to another person. Such arrangements may be made 'under section 85A, 85B (of the 2018 Act) or otherwise' – that is, payment may be made to an appointee empowered to manage the individual's claim, or to a person who is not an appointee, but simply receives payment on behalf of the individual to whom the award is made. Payments can be suspended if Social Security Scotland considers it necessary to protect the claimant from financial abuse, if the payee is no longer able to act in that capacity or for other reasons the Regulations might specify.
• The Act also empowers Scottish Government to make Regulations that provide for the suspension of assistance in a third scenario (Schedule 11, para 11(1)(c)), when the individual to whom the award is made asks Social Security Scotland to temporarily cease payment of their award.

Draft Regulation 2 amends the DACYP Regulations to enable Social Security Scotland to suspend payment of Child Disability Payment in the first two scenarios set out in the Act. Draft Regulation 3 amends the SCP Regulations to enable Social Security Scotland to similarly suspend payment of SCP.