The Social Security (Miscellaneous Amendment and Transitional Provision) (Scotland) Regulations 2022: child rights and wellbeing impact assessment

2. What impact will your policy/measure have on children's rights?

Positive: the extension to the eligibility criteria for Scottish Child Payment (SCP) will provide additional social security support to parents of children aged 6-15. Increasing the value of the payment to £25 a week will provide greater financial support to all eligible families. This is specifically targeted at low income families. Scotland is the only part of the UK to offer this type of support.

It will also ensure that, in the unfortunate situation where a child to whom a claim relates dies, these amendments will also provide for a payment, equivalent to the value of Scottish Child Payments made in the 12 weeks prior to the child's death, to be made. This will bring the payment closer in line with the reserved benefits which act as qualifying benefits for SCP.

Widening the meaning of kinship care for Best Start Grant (BSG), Best Start Foods (BSF), and SCP will ensure, as we roll out Scottish Child Payment to under 16s, that eligible kinship carers who are not related to the child but are known to them and have a pre-existing relationship with the child are included.

Introducing auto-award for elements of BSG will reduce the need for applications, making it easier for eligible families to receive their entitlement.

Providing new exceptions to the general rule that an individual is only entitled to the higher Pregnancy and Baby Payment when they are applying in respect of their first child, will provide greater support for families in the following situations, who are more likely to be starting from scratch without the items that the Pregnancy and Baby payment is intended to provide:

• individuals granted refugee status, humanitarian protection, or leave under the Afghanistan resettlement schemes or the Ukraine resettlement schemes, who have a child/children from before they arrived in the UK
• individuals who took on responsibility for a child/children who was not their own when that child/children was more than 12 months old
• individuals who have been forced to leave their home with a child/children due to domestic abuse

Widening the meaning of surrogacy for BSG and BSF will ensure that all individuals who are responsible for a child through formal surrogacy arrangements can be classed as having responsibility for the child, and removing the condition that the child is not looked after by the local authority in residential care for BSG, will allow more low income families to benefit from this support.

Children's Rights

Our assessment of the impact of the changes we are proposing on the relevant articles of the UNCRC is as follows:

Article 2 - Non-discrimination.

Social Security Scotland is committed to treating all applicants equally. The principle of non-discrimination is enshrined in the Social Security (Scotland) Act 2018.^[1] Therefore, all those who submit a claim can expect the decision to be made fairly and there are procedures in place for complaints and appeals if they believe that standard has not been met.

The approach taken by Social Security Scotland is centred on non-discrimination making the application process as accessible as possible to reduce the stigma around claiming benefits. We have committed to a multi-channel approach for the Five Family Payments (FFP) as with the other devolved benefits with applications taken over the phone, online or on a paper form. In addition, Social Security Scotland has set up a Local Delivery Service with staff in all 32 local authority areas. These staff operate at the local level helping and informing clients of benefits available and assisting clients claim what they are entitled to. They give clients a choice in regard to how they access the service by offering support in outreach locations, home visits and prisons, removing a significant barrier to applying. Clients are able to receive one to one support, to understand what devolved benefits they are entitled to and help them to complete applications.

Once fully operational, there will be at least 400 staff spread across all local authority areas in Scotland. Over the coming year they will seek to become embedded and known in the local community.

The Scottish Commission on Social Security (SCoSS) recognised in their report^[2] on the initial roll out of SCP that it is a positive measure protecting against discrimination. They highlighted that the decision to pay under 6s early, meant those over the age of 6 would be at a disadvantage. However, they deemed this approach acceptable under international law which allows for the progressive realisation of social and economic rights, with the payment for children aged 6 to 15 being launched at a later date. By now rolling out SCP to all eligible children under 16 we are further advancing social and economic rights.

We have considered the eligibility criteria for Scottish Child Payment in line with UNCRC at particular length when considering the definition of a child in UNCRC and the age limit for the payment. The payment has been designed to deliver support to those responsible for children under 16, as we believe this will have the biggest impact on child poverty.

For BSG, we are providing new exceptions to the general rule that an individual is only entitled to the higher Pregnancy and Baby Payment when they are applying in respect of their first child, for those who are more likely to be starting from scratch without the items that the Pregnancy and Baby Payment is intended to provide. This will protect these families from being discriminated against in the amount of support that they receive.

Widening the definition of kinship care for the FFP will ensure that our regulations do not discriminate between different categories of kinship carers on the basis of their relationship with the child. Carers who do not have a legal order or agreement with the local authority may still be able to qualify providing they can demonstrate child responsibility by being in receipt of certain reserved benefits.

Widening the meaning of surrogacy will ensure all individuals who are responsible for a child through formal surrogacy arrangements are able to meet the child responsibility test for BSG and BSF.

Removing the condition for BSG that the child is not looked after by the local authority in residential care aligns with the approach taken for SCP and BSF and will mean individuals will still be eligible to apply for BSG where their child is in residential care as long as they are still responsible for the child and meet the other eligibility conditions.

Article 3 - Best interests of the child

The FFP are one aspect of the Tackling Child Poverty Delivery Plan^[3] (TCPDP), a holistic plan focussed on reducing child poverty with the best interest of every child at its centre. SCP and BSG can be spent to meet the best interests of each individual child, whether on clothes, hobbies or books.

In their report on the initial rollout of SCP, SCoSS highlighted that 'by directing additional resources to low-income households including children, it is all but certain that SCP would be regarded as being in the interests of the children who are projected to benefit from its introduction'.^[4]

Article 4 - Protection of rights

Social Security Scotland's commitment to dignity, fairness and respect, enshrined in the Social Security (Scotland) Act 2018, and in the publication of Our Charter^[5], ensures that the protection of rights is at the core of the FFPs development and implementation.

Article 5 - Parental guidance and a child's evolving capacities

The FFP are awarded to parents and carers to spend based upon their child's needs. They will be the best judge of how best to allocate the funds being made available. The views of parents and carers, including young parents, have been extensively consulted as part of the development of the benefits and feedback will continue to be gathered as part of our commitment to continuous improvement.

Article 12 – Respect for the views of the child

The first TCPDP^[6] was formed through extensive consultation with children and young people, and this formed the basis of SCP and BSG policy. Initial policy development of BSF was informed by a 2016 report by Nourish Scotland entitled

Living is More Important than Just Surviving - Listening to what children think about food insecurity^[7] and the report produced by the Children's Parliament in 2017 entitled What Kind of Scotland?.^[8]

Young parents and young people have been considered throughout the policy development of the FFP including through representative organisations and direct engagement and particularly through user research.

Article 18 – Parents or legal guardians to have primary responsibility for the upbringing of the child.

The FFP are paid to the person deemed responsible for the upbringing of the child, this is normally determined through the child being named on a child responsibility benefit or through a legal order demonstrating that the person is a kinship carer for the child.

For both BSG and BSF, child responsibility can also be determined through a legal order demonstrating that the person is an adoptive parent, surrogate parent or guardian. Furthermore, young parents who normally live with the child, are under 20 and are a dependant of someone else are also deemed as responsible for the child.

Currently, either of a couple in a household can apply for the FFP, including if they are the partner of the main carer of the child. This decision was taken given that we are utilising the same technical build for all of the FFP, which allows partner applications, to provide a streamlined application process and reduce the burden on client. In addition, the legal route that we have chosen to deliver the SCP means that child responsibility is determined through the data that we receive from the DWP and HMRC. We are therefore reliant upon the information that they hold, recognising that a "main carer" is usually only determined via this data when a couple have separated. We do recognise the importance of the main carer accessing the funds as there is evidence demonstrating that they are more likely to spend the additional income on the child.^[9]

In December 2021, we introduced amendment regulations which give Social Security Scotland additional powers when considering competing claims for SCP and BSG. These additional powers will help ensure that the individual who is actually looking after the child receives SCP and/or BSG in the event of a competing claim.

Article 23 – Children with disabilities

Children with disabilities are more likely to experience poverty, therefore the additional financial resource is expected to have a positive impact upon this group. This financial disadvantage may be a result of the higher costs of living with a disability, reduced opportunities for adults in the household to undertake paid work and barriers to benefit take-up. Despite being well-reported, the reasons for the association between poverty and childhood disability are not yet fully understood.^[10] We are committed to removing barriers to accessing our service both for those with disabilities and for those supporting children with disabilities, through inclusive communications and a flexible application process.

The needs of disabled children contributed to decisions in designing the BSG in the following ways:

• Disabled children do not necessarily meet developmental milestones in the same timescales as other children. The Early Learning Payment has a long application window which accommodates children with different needs;
• Disabled children may not take up a place in formal education at the same timescale. To ensure that this is not a barrier, there is no requirement to enrol/attend nursery or school to qualify for an Early Learning or School Age Payment; and
• Parents whose new baby has been identified as having a disability will have other priorities in the first few months. Allowing applications to be made up until the child is 6 months for Pregnancy and Baby Payment gives them time to apply.

Article 24 - Right to health and health services

BSF supports families by enabling their children to have access to a healthy nutritious diet.

Article 26 – Social security

The Scottish Government is committed to the principle that social security is a human right, with Section 1 of the Social Security (Scotland) Act 2018 stating that 'social security is itself a human right and essential to the realisation of other rights'.^[11] The importance of this was echoed by the children and young people consulted through the development of the first TCPDP.^[12] The payments will expand upon the right of a child to benefit from social security. This is accompanied by a concerted effort by Social Security Scotland to change the perception of social security to a human right.

We have considered the SCP eligibility criteria stopping at 16 in accordance with the definition of a child for the purposes of the UNCRC. We recognise that once a child reaches 16 and remains in non-advanced education they may be eligible for Education Maintenance Allowance. We also recognise that they may be eligible for certain reserved benefits if they do not remain in education. We consider 16 and 17 year olds have adequate alternative social security provision upon reaching the age of 16.

Article 27 – Adequate standard of living

The payments are intended to ensure that children have an adequate standard of living, and is part of the overall TCPDP approach to tackling child poverty. Young parents told us that the early years are costly, with children regularly needing new clothes and shoes as they grow. The children and young people consulted recommended SCP provides an increased income to allow access to transport, school trips and activities. BSG provides additional money to families when their children make transitions in the early years, while BSF provides pregnant women and families with children under the age of three increased income via a payment card to purchase healthy foods and milk.

By increasing the value of SCP to £25 a week we will provide greater financial support for eligible children.

By providing new exceptions to the general rule that an individual is only entitled to the higher Pregnancy and Baby Payment when they are applying in respect of their first child, we will provide greater support for a small group of vulnerable families who are more likely to be starting from scratch without the items that the Pregnancy and Baby Payment is intended to provide.

Article 28 – Right to education

The BSG Early Learning Payment can help with costs during early learning to support child development, travel costs, trips out and toys for home learning or the costs associated with taking up a place at nursery. The application window has been designed to align with the take up of nursery place at either age 2 or 3, potentially allowing for a link to be made with the take up of early learning and childcare places for eligible 2's. The School Age Payment can help with costs of preparing for primary school, after school activities or with the cost of school trips. SCP provides an increased income to allow access to school trips and activities.

Article 31 - Right to leisure, play and participation in cultural and artistic activities.

Both the BSG and the SCP help those responsible for the child to provide items for play, recreation and leisure activities.