Social Security (Residence Requirements) (Afghanistan) (Scotland) Regulations 2021: SCoSS scrutiny report

1. Introduction

The Scottish Commission on Social Security is pleased to report on

The Social Security (Residence Requirements) (Afghanistan) (Scotland) Regulations 2021 (henceforth referred to as ‘the Regulations’), that were laid in the Scottish Parliament on 13 September and came into force on 15 September 2021. These regulations fall within our remit to scrutinise, in accordance with 97(1)(a) of the Social Security (Scotland) Act 2018 (hereafter referred to as ‘the Act’).

The purpose of these Regulations is to waive the habitual residence test and, where applicable, the past presence test, for people arriving from Afghanistan under various Home Office schemes^[1] with regard to forms of assistance over which Scottish Government has competence. The changes required encompass both those for which Scottish legislation is already in place: Child Disability Payment (CDP), Best Start Grant (BSG), Best Start Foods (BSF), and Young Carer Grant (YCG), and those which are currently being delivered under an agency agreement with the Department of Work and Pensions (DWP): Disability Living Allowance (DLA), Personal independence Payment (PIP), Attendance Allowance (AA) and Carer’s Allowance (CA). Provisions related to Adult Disability Payment (ADP) are not included in these regulations. They will be incorporated into forthcoming ADP regulations.

The need for emergency legislation was driven by the UK Government’s decision to waive habitual residence and past presence tests, for people arriving under the afore-mentioned schemes, with regard to means- tested and disability and carers benefits. The Scottish Government therefore needed to mirror these regulations to the same timetable.

Failure to do so would have meant those tests would continue to apply to forms of assistance within devolved areas of competence, with clearly adverse consequences for those individuals and for administrative efficiency. The UK government has committed to welcome around 5,000 people in the first year and up to 20,000 over the coming years^[2]. Officials told us that they were currently supporting 341 adults and children in Scotland, located in hotels in two local authority areas. However, it is not known what the eventual number will be.

Due to the pace at which emergency legislation was enacted, the Regulations were laid and referred to the Scottish Commission on Social Security (SCoSS) on the same day, Monday 13th September, so they could come into force on Wednesday 15th September, in line with reserved provision.

Since then, two additional related, but separate, Regulations have been given to us for scrutiny:

• Regulations pertaining to ADP (referred on 25 June 2021). Unfortunately, there was insufficient time for us to scrutinise and report on these as part of our scrutiny report on ADP draft regulations. We will therefore comment on them here.
• An amendment to remove the habitual residence test for all refugees, not just those arriving under the Afghanistan schemes (referred on 13 September 2021). Currently, if you have refugee status, you are exempt from the past presence test in CDP and from the habitual residence test in YCG and BSG, but there is no exemption from the habitual residence test for CDP, nor for DLA, PIP and every other disability and carer's benefit. We are pleased that this amendment was prompted by an early query of ours. It is one of three un-related amendments that are to be incorporated into the forthcoming Disability Assistance for Children and Young People (Scotland) Regulations 2021 and the Scottish Child Payment Regulations 2020 (Miscellaneous Amendments) Regulations 2022. Those regulations will also be comprised of what were formally titled; The Suspension of Assistance (Disability Assistance for Children and Young People) (Scottish Child Payment) (Scotland) Regulations 2021 (referred to us 25 June 2021). We will report on these in due course.

We welcome the Regulations that are the subject of this report and that swift action was taken to put them in place. By removing obstacles to quickly accessing devolved social security they should support the realisation of human rights for people whose needs can be expected to be acute and wide-ranging. However, we note that this policy goal will only be realised if the Regulations are translated into efficient delivery.

This is the first time that draft Regulations have been referred to us that specifically concern refugees. We noted that there may be specific implications for refugees concerning human rights and the Social Security principles (the lenses through which we must scrutinise draft Regulations) and expectations in the Social Security Charter. We offer some brief reflections on these, in addition to matters arising directly from these Regulations.