Best Start Foods, Best Start Grants and Scottish Child Payment (Miscellaneous Amendments) Regulations 2022 - draft: SCoSS scrutiny report

4. Best Start Grant

4.1 Automatic awards of early learning payment and school age payment

Best Start Grant consists of three payments made to families at different stages from pregnancy to starting school – a pregnancy and baby payment (to help buy clothes, pram and other costs of having a new child); an early learning payment (to help with trips, toys, clothes or other costs to support development of a two or three-year-old); and a school age payment (to help with the costs of starting school).

Draft regulation 2(3) introduces automatic awards of two of these payments – early learning and school age – to people in receipt of Scottish Child Payment. The Scottish Government's intention is that by Social Security Scotland taking the initiative to identify and pay awards without the need for an application, this will increase take up.

Families who receive Scottish Child Payment for a child are likely to be eligible for Best Start Grant. Eligibility rules about being responsible for a child and being in receipt of a qualifying benefit such as Universal Credit are similar for both Scottish Child Payment and Best Start Grant although not identical. There is sufficient alignment already to enable joint applications for all three family payments – Best Start Grants, Best Start Foods and Scottish Child Payment.

Taking the next step and actively determining entitlement without the need for an application is welcome and reflects SCoSS's previous recommendation to "increase consistency and coherence across Regulations".^[25] It could make it easier for groups who are put off claiming through stigma, language barriers or other difficulties, to access entitlement. Some people gaining could well have 'protected characteristics' because of their age, pregnancy or maternity, disability, race or religion, which affords rights under human rights legislation and the Equality Act^[26] not to be discriminated against.

The lack of an auto-award in itself is unlikely to constitute discrimination but its use could help level the playing field and so be a step towards advancing equality as set out in social security principle 1(g)(ii).^[27] However, not all barriers are removed. Auto-awards rely on people having applied for Scottish Child Payment which in turn relies on people having applied for a qualifying benefit such as Universal Credit.

Auto-awards have the potential to increase take up. Take up of Carer's Allowance Supplement – a fully automatic payment to people who get Carer's Allowance – is 100 per cent by definition. However, this is not a good reflection of the reality that not all carers who are eligible for Carer's Allowance actually get it and so also miss out on Carer's Allowance Supplement. Similarly, not all families who are eligible for Scottish Child Payment actually get it. Recent estimates show that take up of Scottish Child Payment is lower than take up of Best Start Grant early learning and school age payment.

Take up rates^[28]

Best Start Grant pregnancy and baby payment 79%

Best Start Grant early learning payment 84%

Best Start Grant school age payment 81%

Best Start Foods 77%

Scottish Child Payment 77%

The Scottish Government will need to maintain an urgent focus on take up of Scottish Child Payment to ensure that families also get the early learning and school age payments they are entitled to. Presumably, Social Security Scotland is aware of families who get Scottish Child Payment, but not early learning or school age payments. If this were not the case, there would be a risk that auto-awards could lead to fewer people getting these payments. There is a risk that families will perceive that these awards are now made automatically therefore they do not need to apply.

If there are any families eligible for Best Start Grant early learning payment or school age payment who do not get Scottish Child Payment and so are not paid automatically, it is important to make sure that they do not miss out. The Scottish Government has explained that anyone who does not get Scottish Child Payment will still be able to apply for an early learning payment and school age payment in the way they can now.

However, misperceptions about eligibility can lead to lower take up. Identifying groups or circumstances where a manual claim will still be required would help Social Security Scotland communicate directly with people to invite a claim where possible, and make sure that relevant stakeholders understand when a claim might be necessary.

Stakeholders' highlighted the importance of paying the right person when families are in crisis or transition, for example, through domestic abuse or moving in and out of kinship care.^[29] Information held by the system may not be able to distinguish such situations. Before making an auto-award, the Agency will contact clients to advise them of the process, explaining that they can contact the Agency to ask to be removed from the process if they wish and will be able to apply for a Best Start Grant at a time that suits them.

While this ability to opt out is not specified in the regulations, the Scottish Government's view is that this is an operational matter and will not run counter to the provisions on Best Start Grant auto-awards in the regulations.

However, it seems to SCoSS that the draft Regulations do not clearly give Social Security Scotland the discretion they would need to deliver this operationally. The regulation is phrased so that the Agency "are to make a determination" without receiving an application if the client is likely to be entitled.^[30] This imposes an obligation to do so. To pay the right person, it is important that Social Security Scotland has the legal power to defer or waive making an auto award.

Recommendation 10: The Scottish Government should maintain an urgent focus on take up of Scottish Child Payment to ensure that families also get the early learning and school age payments they are entitled to, realising the potential of auto-awards to increase take up.

Recommendation 11: The Scottish Government should explain how the Regulations give Social Security Scotland the discretion to defer or waive making an auto award of Best Start Grant where the claimant requests this or where circumstances suggest that another person may be eligible to apply during the application window.

4.2 Refugees, kinship carers and people escaping domestic abuse

Draft regulation 2(5) provides for the higher rate of the pregnancy and baby payment in new situations in order to provide more support to refugees, kinship carers and people who have to leave home because of domestic abuse.

Normally the higher rate is paid for the first child born and the lower rate for other children. The payment is intended to help parents with the costs of having a child. The expectation is that families will have more clothes and equipment to buy for a first child so a lower rate is paid for other children.

The amendment was prompted by a UK Upper Tribunal case in relation to Sure Start Maternity Grant which Best Start Grant replaced.^[31] The Upper Tribunal decided that two groups were discriminated against, contrary to the European Convention on Human Rights, and should have access to a Sure Start Maternity Grant despite already having an older child. The two groups were refugees having a baby in the UK who came to the UK with an older child, and people who have their first child when they are already responsible for a child who came into their care after 12 months old. In each case, they were highly unlikely to have baby items.

Changing the rules in response to this UK case is an advance in non-discrimination in the Scottish system (a promise in Our Charter, A Better Future based on principle 1(g)(ii)) and is welcomed by SCoSS and stakeholders.

The intention is to pay the higher amount to refugees who have a child from before they arrived in the UK.^[32] As drafted, the rule does not just apply when an older child was born outside the UK or came to the UK with the refugee claimant, it would also apply when an older child was born in the UK e.g. to a new partner. If this is not the policy intention, the draft regulation may need to be clarified.

The Scottish Government has chosen also to give the higher rate of pregnancy and baby payment to families who have to leave home because of domestic abuse, a situation which was noted by the tribunal as similar to the cases on appeal and also potentially discriminatory.

'Domestic abuse' is defined in the draft regulation by reference to the Domestic Abuse (Protection) (Scotland) Act 2021. However, whereas that Act includes abuse by an ex-partner, the draft regulation restricts it to abuse 'by the individual's partner'. Scottish Women's Aid explained how this would not reflect women and children's lived experience.

The law recognises that domestic abuse does not stop when a woman ends a relationship with an abusive partner, in reality domestic abuse intensifies post separation and women and children are most at risk in this period. …. Women are often forced to move multiple times to try and escape an abusive ex-partner.

Scottish Women's Aid

Recommendation 12: The Scottish Government should ensure that the regulation to pay the higher level of pregnancy and baby payment matches the policy intention with regard to refugees.

Recommendation 13: The Scottish Government should widen the definition of 'domestic abuse' to include abusive behaviour by the individual's ex-partner.

4.3 Payments to surrogate parents

People who have a child through an arrangement with a surrogate mother are eligible for Best Start Grant and Best Start Foods. Draft regulations 2(2)(a) and 3(3) update the meaning of 'surrogacy' in line with changes to the Human Fertilisation and Embryology Act 2008 which allow single people as well as couples to apply for a parental order. A parental order transfers responsibility for the child from the surrogate mother. Originally, the Act only allowed couples to apply for a parental order. Following a court ruling^[33] that this was incompatible with the European Convention on Human Rights (ECHR), the law was changed in 2019.^[34]

The Scottish social security system should advance equality and non-discrimination (principle (g)). There is no doubt that this change does so although it is likely to affect few people. People who have a child through a surrogacy arrangement applying for Best Start Grant and Best Start Foods can also show they are 'responsible for a child' through getting Child Benefit, which may well be in place before a parental order.

4.4 Children in the care system

Draft regulations 2(4), 2(6) and 2(7) remove the exclusion from Best Start Grant for a child who is looked after and accommodated by a local authority. This aligns Best Start Grant with Scottish Child Payment and means that a parent or carer is still eligible for a grant while their child is living in care as long as they are still responsible for the child.

When a child becomes 'looked after', child benefit stops after 8 weeks, at which point the parent is no longer regarded as responsible for the child for Best Start Grant. This amendment, therefore, opens up an 8 week period after a child goes into care where it is possible to apply for Best Start Grant. We would not expect there to be many people able to take advantage of this wider window to claim. However, when families are in crisis, financial support is particularly important. This change could make a small contribution towards keeping children safely with their families and be in the best interests of the child (Article 3(1) UNCRC).^[35]