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

2. Approach to scrutiny

2.1 SCoSS's remit

Sections 22 and 97 of the 2018 Act require Scottish Government to submit Regulations made within the scope of part 2, chapter 2, or section 79 of the Act to SCoSS for pre-legislative scrutiny. Draft Regulation 2, amending the DACYP Regulations, is made within the scope of part 2, chapters 3 and 4. This means it does not have to be referred to SCoSS for pre-legislative scrutiny, as it is not covered by scrutiny function in section 97.^[2] However, draft Regulation 3, amending the SCP Regulations, is made within the scope of section 79 and therefore, is subject to pre-legislative scrutiny by SCoSS.

This is a potentially confusing scenario. The rationale for the different scrutiny requirements that pertain to Regulations made using powers conferred by different parts of the Act is not entirely clear. Indeed, the line between Regulations that fall within the scope of part 2, chapter 2 and those that do not can be decidedly blurred. This is not the first time that a set of Regulations referred to SCoSS has contained elements that fall within our remit and elements that do not, but the issue is thrown into sharp relief because Regulations 2 and 3 are so similar. Logically, many of the points that SCoSS might wish to make about draft Regulation 3 (in scope for scrutiny) will be equally applicable to draft Regulation 2 (technically out of scope).

We were very grateful to receive clarification from the Scottish Government that it will welcome SCoSS's views, observations and recommendations on all provisions contained in Regulations referred to us for scrutiny, even if it is not strictly under any legal obligation to do so. However, this informal arrangement is not entirely satisfactory and there does appear to be a need for a more formal review of the scope of SCoSS's pre-legislative scrutiny role in advance of the next piece of primary social security legislation.

Observation 1: The making of substantively similar amendments to the SCP and DACYP Regulations is one of a number of scenarios in which section 97(1) of the 2018 Act creates what can appear to be an illogical divide between the parts of a set of draft Regulations that fall within and outside SCoSS's pre-legislative scrutiny function. There may be something to consider when primary social security legislation is next considered.

2.2 Principles and human rights

In exercising any of its functions, SCoSS may have regard to relevant provisions of human rights law. In its pre-legislative scrutiny function, SCoSS must have regard to human rights law and the social security principles^[3]. As always, then, the principles and human rights law form an important part of the lens through which the draft Regulations have been scrutinised.

The introduction of a power to suspend payment in defined circumstances within the DACYP and SCP Regulations has implications for various social security principles and human rights obligations. Relevant principles and human rights are highlighted as appropriate throughout the report. However, it is important to note that they do not necessarily apply in the same way to all the scenarios for suspension, particularly where continued eligibility is in question. Additionally, much will depend on effective safeguards and how they are implemented. Suspending payments could either be a means of preserving entitlement and associated rights that would otherwise be lost, or be an unwarranted interference with those rights.

2.3 Scrutiny process

The draft regulations scrutinised in this report were formally submitted to SCoSS on 25 June 2021 by the Minister for Social Security and Local Government, Ben Macpherson MSP, with a deadline for reporting of 2 August 2021. This was so provisions came into force at the same time as the national launch of Child Disability Payment. SCoSS shared its draft recommendations with Scottish Government on 3 August 2021.

Subsequently, the Scottish Government informed SCoSS that, by the time they are laid, the draft Regulations will be renamed as the Disability Assistance for Children and Young People (Scotland) Regulations 2021 and the Scottish Child Payment Regulations 2020 (Miscellaneous Amendments) Regulations. This change reflects the addition of new draft Regulations not connected with the suspension of assistance. The new provisions will receive pre-legislative scrutiny separately.

Referral of the Suspension Regulations came at a time when the Commission was experiencing an exceptionally heavy workload and changes to secretariat personnel. Nonetheless, we were able to consult a few key stakeholders. We are very grateful for the timely, important and informative responses we received. These have informed the following report in a number of respects.

We were also able to invite Scottish Government officials to a SCoSS Board meeting to discuss the draft Regulations and we submitted written questions following the Board meeting to which officials responded by email.

Due to the tight timelines and longstanding leave arrangements, it has not been possible for all SCoSS members to contribute to this report. On this occasion, Sharon McIntyre was unavailable during much of the reporting period and this report therefore comes primarily from the three remaining SCoSS members.

2.4 A Note on terminology

It has become standard practice for Scottish Social Security Regulations to refer to the person to whom they apply as 'the individual' or 'the person'. These terms have a specific meaning in the context, but in everyday language can mean essentially anyone – and this creates potential for confusion. The suspension of a CDP payment in particular could involve multiple parties: the child to whom the award is made, the person with parental responsibility who manages the award, or an appointee who does so, and potentially another person who has been nominated to receive payment on behalf of the child. While there is no question over the legal effect of the Regulations, careful reading is sometimes required to understand whom 'the person' refers to ('the individual' appears to consistently refer to the individual to whom the award is made).

Recommendation 1: Scottish Government is invited to consider how it can clarify who is meant by the 'individual' and 'the person' as they appear in Social Security Regulations.

There is an inconsistency in the wording of DACYP Regulation 26A(1) and 26A(2), and similarly between SCP Regulation 19A(1) and 19A(2). In each case, paragraph 1 refers to suspension of entitlement, whereas paragraph 2 refers to suspension of payment. This ambiguity is also present in the primary legislation. Section 12 of the 2020 Act, which amends the 2018 Act to introduce the power to suspend, is headed 'Power to suspend payment of assistance'. However, some of the new provisions inserted into the 2018 Act refer to suspension of entitlement, or simply (in common with the cross-heading preceding section 12) to the suspension of assistance. Scottish Government has advised SCoSS that it makes no distinction between the three terms. However, some of the stakeholders who responded to SCoSS's call for views on the draft Regulations argued that the Regulations should be amended to refer consistently to the suspension of payment rather than entitlement.

Recommendation 2: Scottish Government should amend SCP Regulations 2020, 19A(1) to refer to suspension of payment rather than entitlement.