Scottish Carer's Assistance: consultation

Annex B: Scottish Carer's Assistance – further detail on draft policy for launch

As set out in section 1 of this consultation document, we are proposing outline policy for how Scottish Carer's Assistance will work when it is first launched. This is based on the need to keep core eligibility rules similar to Carer's Allowance, to avoid a 'two-tier system' for those already getting Carer's Allowance. It is also based on the rules set out for devolved Scottish benefits in the Social Security (Scotland) Act 2018. This is so that people getting Scottish Carer's Assistance are treated in a similar way to people getting other Scottish benefits, and are treated with fairness, dignity and respect, in line with our social security principles.

We are inviting views on this outline policy. Questions are set out in section 1 and this annex provides further information. Further work on the detail of how this policy will work for Scottish Carer's Assistance will be carried out when we have the responses to this consultation, and alongside the work we will do with carers to design the services that will deliver this support. We are also working with the Department for Work and Pensions on some areas where there could be impacts on carers' entitlement to support which they provide.

Core Scottish Carer's Assistance eligibility

1. To be eligible carers would need to be:

• 16 or over
• not in full-time education, or education for 21 or more hours a week
• not earning more than £128 a week, after certain deductions (2021/22 threshold)
• providing 'regular and substantial care' to a person who is normally receiving a qualifying disability benefit (see qualifying disability benefits below)
• 'Regular and substantial care' will be defined as 35 hours or more a week. Hours cannot be combined across multiple cared for people

2. Carers would not need to be related to, or living with, the person they care for.

3. Carers would not be able to receive the full amount of Scottish Carer's Assistance at the same time as other 'income replacement' benefits paid for the same purpose, according to the 'overlapping benefits' rule. They would have 'underlying entitlement' to Scottish Carer's Assistance and may receive additional support in reserved benefits.

Definition of care

4. We would not define care in regulations for Scottish Carer's Assistance. However, care must not be provided by virtue of a contract or as voluntary work.

Qualifying benefits – cared for person

5. The cared for person would need to be in receipt of one of the qualifying benefits below. In line with the proposals in section 1, the cared for person may also be in receipt of short-term assistance paid in place of one of the devolved qualifying benefits. Scottish Carer's Assistance would stop when the disability benefit stops, with the exception of the death of the cared for person.

• Adult Disability Payment or Personal Independence Payment - daily living component
• Child Disability Payment or Disability Living Allowance - middle or highest care rate
• Pension Age Disability Payment (when available) or Attendance Allowance
• Constant Attendance Allowance at/above normal maximum rate with Industrial Injuries Disablement Benefit
• Constant Attendance Allowance at the basic (full day) rate with a War Disablement Pension
• Armed Forces Independence Payment

Shared care

6. More than one person would not be able to claim Scottish Carer's Assistance for the same cared for person. Where there are multiple applications involving care of the same person a process would be needed to determine who is entitled to support.

Payments

7. Scottish Carer's Assistance payment amounts would be in line with Carer's Allowance on launch. The payment amount for Carer's Allowance is £67.60 per week in 2021/22. Carers will continue to receive additional support through Carer's Allowance Supplement.

8. Payments will be up-rated annually, on the same date as other devolved benefits, using the same inflation measure, currently the September rate of the Consumer Price Index.

9. Payment frequency would be in line with standard Carer's Allowance payment cycles.

Other benefits: Young Carer Grant

10. We propose that a carer would not be able to get Young Carer Grant if they are in receipt of Scottish Carer's Assistance. However, a carer may apply for Scottish Carer's Assistance in a year in which they have already received Young Carer Grant.

11. Another carer may be in receipt of Young Carer Grant and caring for the same person for whom a carer claims Scottish Carer's Assistance. This mirrors Young Carer Grant regulations and allows for shared care.

Other benefits: cared for person's disability benefits

12. If the cared for person has a Severe Disability Premium/additional amount included in their benefits, their entitlement to that support can be affected if their carer receives Scottish Carer's Assistance. Severe Disability Premium is an additional amount paid in certain means-tested benefits to help with the cost of disability.

Other benefits: reserved means-tested benefits

13. Scottish Carer's Assistance will be counted as income in the calculation of entitlement to reserved means-tested benefits and tax credits.

14. Receipt of, or having underlying entitlement to Scottish Carer's Assistance would also mean a carer is in the 'no work-related activity' group for Universal Credit, and therefore not required to look for or prepare for work.

15. The work requirements for Working Tax Credits for couples with a child or qualifying young person are reduced if one of the couple is receiving Scottish Carer's Assistance – to just 16 hours a week.

16. Carers receiving Scottish Carer's Assistance or with underlying entitlement to Scottish Carer's Assistance, would be exempt from the benefit cap.

Tax status

17. Scottish Carer's Assistance will be a taxable benefit. Carer's Allowance is taxable and the definition of income for tax purposes is reserved to the UK Government.

Backdating and qualifying periods

18. We propose that backdating would mirror Carer's Allowance – we would backdate Scottish Carer's Assistance awards up to three months, and further where the cared for person's qualifying benefit is backdated, and the claim is made within three months of the qualifying benefit award. This may be more than three months in situations where the cared for person's award is backdated following a Tribunal decision.

19. There would be no qualifying period for Scottish Carer's Assistance, carers can apply from day one of their caring role, or up to three months before they would qualify – for example if they plan to stop working to take on a caring role.

Death of cared for person

20. Scottish Carer's Assistance would continue to be paid for 8 weeks after the death of the cared for person on launch. Options are being considered to extend this in future and more information on this is included in section 3 of this consultation.

Breaks in care

21. Carers would be allowed up to four weeks' break in any 26 week period, and up to 12 weeks if the cared for person is in hospital, and still retain their Scottish Carer's Assistance award.

Redeterminations and appeals

22. We propose that re-determination timescales would be set in line with the Scottish disability benefits. Given the pressures on carers, having a longer timescale to request a re-determination would be beneficial. Carers would have 42 days to request a re-determination and the Agency would have 56 days to carry this out.

23. Appeal timescales and First-tier Tribunal procedures set out in the Social Security (Scotland) Act 2018 and the First-tier Tribunal for Scotland Social Security Chamber (Procedure) Regulations 2018 will apply. Carers will have 31 days to request an appeal after they receive the outcome of a re-determination.

Short-term assistance

24. Short-term assistance would be available where a decision to reduce or remove an award of Scottish Carer's Assistance is being challenged. Short-term assistance paid during the two challenge periods (re-determination and appeal) would not need to be paid back, unless there has been an overpayment as a result of fraud or error. We propose that short-term assistance would not be available to carers challenging a decision to set their award to £0, due to them receiving an overlapping benefit, earning over the earnings limit, or when a cared for person is in hospital. This is because this could risk incentivising challenges, when these are unlikely to be successful, when the determination is based on evidence of overlapping benefits, earnings or the removal of a qualifying disability benefit. Short-term assistance is also not available for Child Disability Payment when a child's award is set to £0 following admission to residential care.

25. As set out in section 1, we propose that short-term assistance should be treated as a qualifying benefit for Scottish Carer's Assistance when being paid in place of a qualifying disability benefit. This would allow carers to continue to receive support when a cared for person is challenging a decision. Any Scottish Carer's Assistance paid while a cared for person is receiving short-term assistance would not normally be recovered, except where it has been paid as a result of fraud or error.

Overpayments, recovery, fraud and offences

26. Provisions in the Social Security (Scotland) Act 2018 on overpayments, recovery, fraud and offences would apply to Scottish Carer's Assistance. This means that in line with other devolved benefits, recovery of any overpaid Scottish Carer's Assistance could be taken from ongoing payments of other devolved benefits, and recovery of other benefits could be taken from Scottish Carer's Assistance. In making decisions about recovery of overpayments, an individual's circumstances (including their financial circumstances) will be taken in to account. No individual will be placed into hardship as a result of recovery.

27. Investigations have previously been carried out into Department for Work and Pensions overpayments of Carer's Allowance, by the National Audit Office and Work and Pensions Select Committee. These investigations highlighted a number of issues which led to these overpayments, and further fraud and overpayments policy and design work will be undertaken to prevent this from occurring in Scottish Carer's Assistance.

Residence requirements

28. Residency will be based on the place of residence of the carer, not the cared for person.

29. To get Scottish Carer's Assistance, carers will need to be 'ordinarily resident' in Scotland and 'habitually resident' and present in the common travel area. If someone is 'ordinarily resident' somewhere it means that they live there. If someone is 'habitually resident' somewhere it means that place is their main home and they intend to stay there. The Common Travel Area is the United Kingdom, Ireland, the Isle of Man, and the Channel Islands.

30. They must also not be 'subject to immigration controls'. If someone is subject to immigration controls, it means they are able to be in the UK and stay there, but they aren't able to access public funds, such as benefits. This will sometimes be the case if someone has come into the country on a visa which has these limits – these include 'partner visas' – if they are moving to live with a partner who lives in the UK – and student visas.

31. To be eligible for Carer's Allowance you have to have been living in Great Britain for 104 of the past 156 weeks (2 of the past 3 years) – this is the 'past presence test'. Following recent appeals against the rules which the Department for Work and Pensions use, we have already reduced the 'past presence test' which we will use for other new Scottish benefits, Child and Adult Disability Payments. We are considering the test which should be used for Scottish Carer's Assistance.

32. The same rules on 'exportability' – eligibility to receive support outside the UK - will apply for Scottish Carer's Assistance as they do to Child and Adult Disability Payment. This means some carers may be able to receive Scottish Carer's Assistance outside of the UK if they are living in the European Economic Area, Switzerland or Gibraltar, and they have a 'genuine and sufficient link' to Scotland. They would need to be included in agreements the UK Government has made with the European Union, Ireland, or Gibraltar. To be covered by the European Union agreement, carers from the UK would need to have been living outside of the UK since before the UK left the European Union on the 1st January 2021. Carers may also receive support outside of the UK if they are a serving member of the armed forces, aircraft worker or mariner. Carers wouldn't be able to get Scottish Carer's Assistance if they are living outside of Scotland but elsewhere in the UK. People living elsewhere in the UK will get UK Carer's Allowance even if they have links to Scotland.

Special rules for terminal illness

33. We don't propose to include special rules for terminal illness for Scottish Carer's Assistance. The special rules for disability assistance allow awards to be made with no qualifying period, but there is no qualifying period for Scottish Carer's Assistance. We are considering how Scottish Carer's Assistance applications may be handled differently where the cared for person is awarded support under special rules.

34. We are considering whether any past presence test for Scottish Carer's Assistance should be removed where the cared for person is awarded support under the special rules. There is no past presence test for disability assistance awarded under the special rules.

Appointees

35. Standard appointee provisions in the 2018 Act, as amended by the Social Security Administration and Tribunal Membership Act 2020, would apply to Scottish Carer's Assistance as they do to other devolved forms of assistance. These allow people to have another person act on their behalf in dealing with their benefits.

36. For carers already getting Carer's Allowance who have their benefits transferred to Scottish Carer's Assistance we intend to allow existing Department for Work and Pensions appointees to remain appointees pending a review by Social Security Scotland, in line with the 2018 Act provisions.

Suspension of assistance

37. Provisions for suspension of assistance would mirror those inserted into regulations for Scottish Child Payment and Child Disability Payment, setting out circumstances in which assistance may be suspended: 1. When an individual has not provided information which has been requested; 2. When someone is receiving assistance on behalf of the carer, and that person is no longer able to receive the assistance, or 3. There is a risk of financial abuse.

38. Carers will have the right to challenge a suspension of assistance and ask for a review but this wouldn't have the same status as a re-determination and there would be no short-term assistance or appeal available in this situation.

39. Regulations will be drafted so that decisions to suspend awards have to take into account the financial circumstances of the carer, allow them a right to review as above, and explain to them the reasons for the suspension in writing.

40. Work is ongoing to consider what should happen to Scottish Carer's Assistance awards when the qualifying benefit has been suspended.

Nil awards

41. As set out above, we propose that Scottish Carer's Assistance awards could be set to £0 for any week in which a carer earns over the earnings threshold. This would prevent overpayments where a carer has earnings which change regularly, but prevent an award being ended when a carer is ineligible for support only temporarily. This would be a different approach to UK Carer's Allowance in which an award would be suspended in this situation, as suspension powers are more narrow in scope in the devolved system.

42. Scottish Carer's Assistance awards could also be set to £0 for any week in which a cared for person's qualifying benefit award is set to £0. This would include where a cared for person is in hospital for more than 28 days (with the exception of children under 18 where payments will continue). This would be a different approach to Carer's Allowance where an award would end at this point, and would allow support for carers to be resumed more quickly and easily.

43. Awards would also be set to £0 where a carer is in receipt of an 'overlapping benefit' which is paid at the same or a higher rate than Scottish Carer's Assistance. This would ensure that carers do not receive payments which they are not entitled to, but ensure that their 'underlying entitlement' to Scottish Carer's Assistance is recorded on systems. Having an underlying entitlement can increase the amount that carers can receive in other benefits.

44. With the exception of carers in receipt of overlapping benefits, we propose that there should be a time limit of six months on £0 awards, after which a carer's Scottish Carer's Assistance award would be ended and they would need to re-apply if they became eligible in future.

45. Carers would be able to request a re-determination of a decision to set their award to £0 and to appeal this decision following an unsuccessful re-determination.