SSC/S5/19/20/A

SOCIAL SECURITY COMMITTEE

AGENDA

20th Meeting, 2019 (Session 5)

Thursday 19 September 2019

The Committee will meet at 9.00 am in the Adam Smith Room (CR5). 1. Young Carer Grant: The Committee will take evidence on the Scottish

Commission on Social Security's scrutiny report on draft regulations from—

Dr Sally Witcher, Chair, and Terry Shevlin, Secretary, ScottishCommission on Social Security.

Not before 10.00 am

2. Subordinate legislation: The Committee will take evidence on The Carer’sAssistance (Young Carer Grants) (Scotland) Regulations 2019 [draft] from—

Shirley-Anne Somerville, Cabinet Secretary for Social Security and OlderPeople, Nicola Davidson, Young Carer Grant Policy Lead, and ColinBrown, Senior Principal Legal Officer, Scottish Government.

3. Subordinate legislation: Shirley-Anne Somerville (Cabinet Secretary for SocialSecurity and Older People) to move—S5M-18221—That the Social SecurityCommittee recommends that the Carer's Assistance (Young Carer Grants)(Scotland) Regulations 2019 [draft] be approved.

4. Subordinate legislation: The Committee will consider the following negative

instrument—

The Welfare Foods (Best Start Foods) (Scotland) Amendment Regulations2019 (SSI 2019/232)

SSC/S5/19/20/A

Anne PeatClerk to the Social Security Committee

Room T3.60The Scottish Parliament

EdinburghTel: 0131 348 5182

Email: SocialSecurityCommittee@parliament.scot

SSC/S5/19/20/A

The papers for this meeting are as follows— Agenda Item 1

SPICe Briefing SSC/S5/19/20/1

SCoSS report SSC/S5/19/20/2

Agenda Item 2

Note by the Clerk SSC/S5/19/20/3

Agenda Item 4

Note by the Clerk SSC/S5/19/20/4

Social Security Committee 20th Meeting, 2019 (Session 5), Thursday 19 September 2019

Young Carer Grant Regulations

Introduction The Carer‟s Assistance (Young Carer Grants) (Scotland) Regulations 2019 (Draft) were laid in June and payments are due to start this autumn.1

The Committee will hear first from Dr Sally Witcher, the Scottish Commission on Social Security (SCOSS) followed by Shirley Anne Somerville, Cabinet Secretary for Social Security and Older People.

This paper first summarises the regulations and changes since consultation before suggesting areas for discussion with SCOSS and with the Cabinet Secretary. While secondary legislation cannot be amended, only accepted or rejected as a whole, members may wish to discuss whether and how the rules for the young carer grant (YCG) may be refined in the future.

In addition to a public consultation2 (from September to December 2018), to which the Government responded in August, the policy proposals have been considered by:

The Young Carer Panel

Young Carer Grant Working Group

Disability and Carer Benefits Expert Advisory Group (DACBEAG)

A roundtable at this Committee in November 2018, and

Scottish Commission on Scottish Social Security

What the regulations do Basic eligibility

The YCG is a payment of £300 per year to young carers aged 16, 17 and 18 who don‟t receive carer‟s allowance and who provide care to someone on a qualifying disability benefit.

Amount of care provided

To get the grant the young carer must have provided care:

over at least 10 of the 13 weeks immediately preceding their application, and

for a total of at least 208 hours (16 hours a week on average)

1 The relevant section of the Social Security (Scotland) Act 2018 will commence on 14 October See

Commencement order no. 5 SSI 2019/269 2 An analysis of the 75 responses received was published in June.

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Someone can combine the hours of caring for up to three people in order to make up the required hours. However, if two people share the care of the same person, only one of them can get the grant.

Residence

Generally a person must be both ordinarily resident in Scotland and habitually resident in the UK, Channel Islands, Isle of Mann, EEA or Switzerland. There are exceptions to both criteria.

Someone does not need to be habitually resident in certain limited circumstances, such as if they are a refugee.

Someone does not need to be ordinarily resident in Scotland if they have previously had a grant and have since moved to another EEA country or Switzerland.

This second exception recognises the principle of „exportability‟ of carer benefits under EU (and now UK) law. This exception doesn‟t apply to new claims, but only to claims where someone has already received a YCG previously.

Redetermination3

As with other Scottish social security benefits, someone must request a redetermination before they can appeal. For the YCG someone has 31 calendar days to request a redetermination and that redetermination must be completed within 16 working days.

Cost and takeup The Scottish Government estimate that the YCG will reach around 2,400 young carers per year4 which suggests a cost of £720,000.5 The extension in eligibility for 18 year olds (see below) increases the caseload by 700. Only a minority of the estimated 11,000 16-18 year old carers will qualify because for example, they must not be getting carer‟s allowance and the person they care for must be on certain disability benefits.

As a form of carer‟s assistance, s.78 of the Social Security (Scotland) Act requires that the YCG is uprated each year.

Impact on reserved benefits The Scottish Government is seeking a s.104 order6 to ensure that the YCG is not included as income for reserved benefits. Nor will it be included as income in council tax reduction. 7

3 Provision for appeal is in the Social Security (Scotland) Act 2018 rather than in these regulations.

4 Scottish Government, Children‟s Rights and Wellbeing Impact Assessment on the Young Care

Grant Regulations 5 The SFC has not costed the YCG as they do not cost policies below £0.5m and will decide whether

to cost policies below £2m. (See „materiality policy‟, p. 129, SFC Economic and Fiscal Forecast May 2019) 6 S.104 Scotland Act 1998 allows UK Ministers to make consequential amendments required as a

result of Scottish legislation. They have been used to ensure that benefits established so far (best start grant, carer‟s allowance supplement and funeral expense payment are not counted as income for reserved benefits. See SSI 2018/872 (carer‟s allowance supplement), SSI 2018/1138 best start grant) and SSI 2019/1060 (funeral expense payment). 7 Scottish Government Young Carer Grant: response to SCOSS

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What changed following consultation? The main changes since the published consultation are; extending the number of 18 year olds that are eligible, creating a less specific definition of care and allowing care of more than one person to count towards the total hours required.

Age Criteria

The requirement that an 18 year old carer is at school has been removed.8 This means that young carers at college, not entitled to carer‟s allowance, can get YCG.

Definition of care

The definition of care has been changed, but not removed as SCOSS had recommended.9 Instead of specific activities (help to carry out, or to remember to carry out, day to day tasks such as eating and washing) a broader definition is used. The care:

“must involve activity that promotes the physical, mental or emotional well-being of the person being cared for.”10

Caring for more than one person

The consultation proposed that the required hours (16 hours a week) of care would need to relate to caring for one person. In the regulations as laid, it is possible to combine the hours of caring for up to three people in order to make up the required hours.11

More than one carer

In the consultation draft, a person couldn‟t get the YCG if anyone else had either a YCG or carer‟s allowance for caring for the same person. The regulations as laid allow someone to get the YCG if someone else gets carer‟s allowance for the same person. However there is no change to the policy of only allowing one YCG for each person cared for. If, for example, two siblings share the care of a parent, only one of them could get the YCG.

Qualifying Period

The consultation draft had proposed that care must be provided in each of the 13 weeks preceding the application for the grant. The regulations introduce some flexibility – so that care need only be provided over 10 of those 13 weeks.12

The consultation draft had required the person cared for to be in receipt of a qualifying disability benefit on the day of application for the YCG. The regulations as laid require that the person cared for must get a qualifying benefit throughout the 13 weeks.13 The regulations as laid also add a provision on backdating.14 Someone can get a YCG if the person they care for didn‟t have a qualifying benefit at the time, but is later awarded a backdated qualifying benefit that covers the 13 weeks.

Residence

8 Regulation 4(1)

9 SCOSS Recommendation 9: Scrutiny report on draft regulations

10 Regulation 5(3)

11 Regulation 6(2)

12 Regulation 5(2)

13 Regulation 6(1)

14 Regulation 11

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The general residence rule stays the same as in the consultation i.e someone needs to be both ordinarily resident in Scotland and habitually resident in the UK, channel islands, Isle of Man, EEA or Switzerland. The regulations as laid add two exceptions to this as outlined above.

The Scottish Government has been discussing with the Home Office whether the YCG might not be added to the list of „public funds.‟ This would allow those with „no recourse to public funds‟ to access the grant. Such an arrangement was agreed for parents under 18 in relation to the best start grant. However, in response to the Committee the Cabinet Secretary stated that:

“Despite the success of our conversations with the Home Office in relation to the best start grant YCG is of a different scale and our expectation had been that the Home Office would seek to add it to the list of controlled funds.”

Redeterminations

The time limits for making a redetermination have been added. Someone has 31 calendar days to apply for a redetermination and Scottish Ministers (Social Security Scotland) have 16 working days to respond.15 Some consultation respondents thought this was too short (eg Citizens Advice Scotland). In response, and in line with a recommendation from DACBEAG:

“The Scottish Government will monitor whether the 31 calendar time limit for requesting a re-determination is sufficient following the launch of the grant.”

Previous Committee consideration The Committee held a roundtable on 15 November 2018 with: the Scottish Youth Parliament, Carers Trust Scotland, Carers Scotland, Young Carers Support: Carers of West Lothian and Young Scot. The Committee wrote to the Cabinet Secretary on 10 December who replied on 21 June. The following table sets out the Committee‟s recommendations and whether these are reflected in the draft regulations.

Committee recommendation Reflected in regulations? Consider extending entitlement to carer‟s allowance to include 18 – 25 yr old in full time education.

No

If two people share caring responsibilities for the same person, allow both to get the YCG

No – response states that DACBEAG supports the Scottish Government‟s position16

If someone cares for more than one person, allow them to combine their hours in order to qualify for the YCG

Yes – can combine hours of caring for up to 3 people. (reg 6(2)).

Give carers a choice of a „lump sum‟ or payments through the year

No

Allow those with „no recourse to public funds‟ to get the YCG

No – Scottish Government expect that the Home Office will add YCG to the list of public funds.

Hold an early review of the regulations YCG will be reviewed after a year.

SCOSS recommendations

15

Regulation 9 16

Disability and carer benefits expert advisory group.

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SCOSS made 17 recommendations. Ten were accepted, five were not and two were partially accepted.17 Many ask for clarification or further information rather than specific changes. Three led to substantive changes. These relate to the qualifying period (recommendation 8), the definition of care (recommendation 9) and backdating (recommendation 14). The following focuses on those recommendations not accepted or only partially accepted.

Extending age criteria (recommendation 3)

SCOSS asked the Scottish Government to consider extending eligibility to young adults over 18 who are not entitled to carer‟s allowance because they are in full time education and/or providing fewer than 35 hours of care a week. The Government rejected this recommendation having estimated it would increase eligibility from 2,400 to around 9,700 at a cost of £3m in 2020/21.

Qualifying benefits (recommendation 4)

SCOSS asked the Scottish Government to reflect on those who care for people not on qualifying disability benefits and whether disability assistance criteria could be used to broaden eligibility for YCG. This was not accepted.

Definition of care (recommendation 9)

One of SCOSS‟s “chief concerns” was the definition of care and they recommended it was removed. In response the Scottish Government refer to young carers sometimes not identifying themselves as such and state that: “completely removing the definition of care would have an impact on the journey of the young carer and affect the operational delivery of the grant” However the definition was altered.

Passing on caring responsibilities (recommendation 13)

Generally only one grant can be issued for each person cared for. The exception is where the carer dies. SCOSS asked the Scottish Government to consider further exceptions, such as where the carer falls ill or moves away and care is passed to another young person. The Government rejected this stating that: “we have not come across examples of transitional care, for example passing down the caring responsibilities from one sibling to another.”

Non-monetary form of assistance (recommendation 15)

SCOSS asked the Scottish Government to “underline that that the form the YCG is given in is wholly the choice of the young person.” The Government stated that they may consider payment in-kind in the future.

Evaluation and monitoring (recommendation 17)

SCOSS suggestions for evaluation and monitoring included monitoring the impact of the policy on carer‟s lives, on poverty trends and by equality group. Not all the suggestions were accepted. The government response refers to the difficulty in attributing trends in poverty to the YCG and the difficulty in looking at „sub-groups‟ due to the relatively low numbers of people eligible. The Scottish Government will look again at including additional monitoring data in the application form

Suggested themes for discussion

17

See Scottish Government Young Carer Grant: response to SCOSS

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Theme 1: Overview SCOSS reported on a consultation draft set of regulations. The regulations as laid have been amended, taking on board some of SCOSS‟s recommendations. The regulations also reflect most of the eight recommendations made by DACBEAG.

The Committee may wish to discuss whether the regulations as laid raise any new issues for SCOSS

Theme 2: Policy aim and amount of grant The stated policy aim in the policy note is:

“to help young carers improve their quality of life and help them improve their health and education outcomes.”

SCOSS queried how much of a difference a “relatively modest” grant of £300 could make. Their report also queried the amount of analysis that led to that figure being chosen. In reply, the Scottish Government noted that the figure: “was initially used as a point of discussion with stakeholders.” It is considered enough for a „short break‟ or leisure activities, or driving lessons but not an amount that would pressurise someone to remain in a caring role.

The Committee may wish to discuss whether £300 can deliver on the policy aims and in particular whether it strikes the right balance between being “sufficient to make a difference […] whilst being low enough to avoid pressure on the young carer to take on or remain in a caring role”.

Theme 3: Definition of Care The regulations introduce a broader definition of care than had been consulted on. DACBEAG‟s report on the draft proposals noted that:

“We consider that defining care introduced considerable complexity (that is not present in carer‟s allowance) and question whether it will actually improve targeting at those most in need.” […] It seems to us to be very challenging to define care for young carer grant in a way that captures the care actually being provided by young people while avoiding confusion.”

As mentioned above, SCOSS recommended that the definition be removed (recommendation 9). In response the Government changed the definition to:

“activity that promotes the physical, mental or emotional well-being of the person being cared for” (regulation 5(3))

and noted that supporting guidance will give examples of the kind of care meant.

The Committee may wish to discuss Whether the new definition of care provides enough guidance on what

care means while avoiding the problems outlined by DACBEAG and SCOSS

Whether the Scottish Government would be minded to define care for their replacement for carer‟s allowance, or continue the current DWP approach of not defining it. If the latter, why is a different approach needed for the YCG compared to carer‟s assistance.

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Theme 4: Young adults over 18 SCOSS recommended that:

“The Scottish Government give consideration to the case for extending eligibility, now or in the future, to young adults over the age of 18 not eligible for carer‟s allowance.”18 (recommendation 3)

The Scottish Government rejected this suggestion and estimated that extending eligibility to those under 25 would increase caseload to 9,700 and increase costs to £3m.

The Committee may wish to discuss whether or not eligibility should be extended to those under 25 given the additional number of young carers who would benefit balanced against the increased cost.

Theme 5: Allowing shared care The regulations do not allow two people who share the care of the same person who both get the YCG. DACBEAG considered this a reasonable compromise which:

“avoids complex evidence requirements and designs out one overpayment risk”

However, in the consultation:

“many respondents (both organisations and individuals) felt that, as long as the young carer was providing the required average of 16 hours of care per week then they should be entitled to the grant, irrespective of who else may be providing care or claiming a related benefit.”

In the response to the consultation the Scottish Government stated that:

“Allowing multiple young carers to receive YCG for the same cared for person would require additional verification checks. However we commit to monitor any consequences of this decision.”

The Committee may wish to discuss: Whether SCOSS would support extending entitlement to young people

sharing care of the same person at the same time, or whether they agree with DACBEAG that the current policy is „a reasonable compromise‟

How the Scottish Government will monitor the impact of only allowing YCG to be paid to each carer where they share the care of the same person.

Theme 6: Verification The Scottish Government‟s response to the consultation (para 35) states that:

“we will not ask the cared-for person or any other 3rd party to verify the care is taking place. […] It may be necessary for further verification to be carried out in some cases. This may involve asking for confirmation that care is taking place.”

18

This includes those in full time education and those earning over £120 per week

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This reflects the report from DACBEAG which stated that self-identification should be sufficient particularly in light of the:

“cost-benefit ratio [of further verification] given the relatively small sums involved and estimated levels of fraud.”

The Committee may wish to discuss the risk of fraud if there is little verification that the care is being provided

Theme 7: Extending the qualifying disability benefits There were some suggestions in consultation that the requirement that the person being cared for received certain qualifying disability benefits was restrictive. The analysis of responses quoted one response which stated:

“these regulations will not significantly narrow the sizeable gap between identified and „hidden‟ young carers as only those caring for someone with a qualifying benefit will be eligible for the grant.”

The Scotland Act 1998 would need to be amended in order that carer‟s assistance could be provided to those caring for people not on a disability benefit.19

SCOSS suggested that broadening eligibility for disability assistance would enable more carers to benefit from carers assistance and the YCG. However, the Scottish Government has said that it does not intend to alter eligibility for disability benefits in the short term.

However, the current qualifying benefits for carer‟s allowance do not cover all those in receipt of disability benefits. They do not include lower rate care component of DLA or those who only get a mobility component of DLA or PIP.20

In February 2019 there were 184,025 people on DLA in Scotland of whom 57,817 received the lower rate or nil rate of care. Of these, 2,416 were children and 32,076 were pension age. In addition 7,248 out of 226,597 PIP claimants had a nil award for daily living (StatXplore).

The Committee may wish to discuss whether extending qualifying criteria for the YCG to include

receipt of any component of disability benefits would be likely to include many more young carers

whether the Scottish Government considered this option when designing the YCG

Theme 8: Monitoring and evaluation

19

Schedule 5 Scotland Act 1998 defines „carer‟s benefits‟ as one “normally payable in respect of the

regular and substantial provision of care by a person to a disabled person; and for this purpose “disabled person” means a person to whom a disability benefit is normally payable.” 20

See reg 6(3) “qualifying disability benefit” means a disability benefit, or where applicable a component of a

disability benefit, which is of a type, and being paid at a rate, that would entitle a person who cares for the recipient of that benefit and who meets the relevant qualifying conditions

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The Scottish Government published four impact assessments covering: children‟s rights (CRIA), island communities, equalities (EQIA) and business and regulatory impact.

SCOSS emphasise the importance of monitoring the impact of the regulations. Their recommendation 17 lists 12 issues for monitoring or further research including; the impact of the £300 payment, levels of take-up (particularly amongst those with protected characteristics) and how the grant will interact with Scottish carer‟s assistance.

The EQIA notes that: “We recognise that there is limited data about young carers from protected characteristic groups.”

The Child Rights and Wellbeing Impact Assessment (CRIA) stated that the Scottish Government will put in place a monitoring and evaluation plan for the YCG prior to implementation and will engage with young carers and stakeholder organisations in developing this.

The Committee may wish to discuss: Whether SCOSS has any comments on the impact assessments,

particularly given the emphasis on monitoring and evaluation in their report

What progress the Scottish Government has made in developing the monitoring and evaluation plan

How to monitor take up amongst equalities groups given the difficulties raised by the Scottish Government in their response to SCOSS (eg. low numbers, low response rate)

How young carers are being involved in developing the approach to evaluating the young carer grant

Theme 9: Young carer grant and carer‟s assistance A Scottish version of carer‟s allowance is expected to be introduced in 2022. The YCG is an annual grant based on 16 hours of care a week whereas carer‟s allowance is a regular payment based on 35 hours of care a week to people not in education and not earning over £123 per week. They are both forms of carer‟s assistance which can only provide assistance where regular and substantial care is provided to someone on a qualifying disability benefit.

The Committee may wish to discuss: Whether the Scottish Government has considered incorporating the

YCG into Scottish carer‟s allowance Whether incorporating it would be an opportunity to address some of

the suggestions for extensions to eligibility Theme 10: The „super affirmative‟ process and role of SCOSS

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This is the first set of regulations that SCOSS has considered. SCOSS was established following considerable discussion of how to ensure that Scottish social security regulations received the proper level of scrutiny. The procedure established involves:

Public consultation.

Consideration of draft regulations by SCOSS.

Scottish Government publication of their response to SCOSS. Recommendations.

Affirmative procedure in the Scottish Parliament (i.e regulations cannot be made unless approved by the Parliament21). As with all secondary legislation, regulations can only be accepted or rejected as a whole. They cannot be amended. (Although issues could be raised that might be considered for future policy or legislation).

SCOSS has four members and administrative staff. The current expectation is that the Chair will work up to 60 days a year and the three other members up to 36 days a year.22

The Committee may wish to discuss with SCOSS: SCOSS‟s general reflections on the process as it has applied to the

YCG. Whether, as more complex benefits are created, any adjustments might

be required Whether there are regulations under the 2018 Act that SCOSS ought to

be able to scrutinise (eg. investigation of offences, advocacy standards) or others that must be considered by SCOSS but perhaps do not require it (eg annual uprating).

Whether SCOSS has any concerns that benefits within devolved competence can be legislated for outwith the Social Security (Scotland) Act and therefore not require scrutiny by SCOSS.23

Camilla Kidner SPICe Research 12 September 2019

Note: Committee briefing papers are provided by SPICe for the use of Scottish Parliament committees and clerking staff. They provide focused information or respond to specific questions or areas of interest to committees and are not intended to offer comprehensive coverage of a subject area.

The Scottish Parliament, Edinburgh, EH99 1SP www.parliament.scot

21

This differs from the negative procedure which allows regulations to be made unless the Parliament objects. 22

Application information 23

For example, in June, best start foods was established under a UK Act rather than under the Social Security (Scotland) Act 2018. The job grant is being created as an administrative scheme and so will not require further legislation. From April, disability benefits will be devolved but will still be contained in UK legislation until their Scottish equivalent is legislated for.

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Scottish Commission on Social Security

Scrutiny Report on Draft Regulations:

The Carer’s Assistance (Young Carer Grants) (Scotland) Regulations 2019

Submitted to Scottish Government on: 17.05.19

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Foreword

The Scottish Commission on Social Security (SCoSS) is pleased to present its first scrutiny report on draft regulations. As we are a new body and this is a new process for all concerned, we hope it is helpful to provide a brief outline of our role and how we intend to operate.

SCoSS was established by the Social Security (Scotland) Act 20181 as an advisory Non Departmental Body, independent of Scottish Government and Parliament but with legal duties that relate to both. We legally came into existence on 21 January 2019 and opened for business on 8 February 2019, as was necessary to enable timely scrutiny of draft Young Carer Grant regulations (See ANNEX A).

The Act broadly sets out three key parts to our role2:

Scrutinising and reporting on draft regulations arising from the Actin relation to nine forms of devolved assistance3 and the power ofScottish Ministers to top-up benefits reserved to the UKGovernment

Reporting, from time to time, on the extent to which expectations inthe Social Security Charter are being met and makingrecommendations for improvements

Providing any reports requested by Scottish Ministers or theScottish Parliament on any matter that is relevant to social security

When the Commission scrutinises draft regulations we must have due regard to any relevant international human rights instruments4 and the Social Security principles.5 As the Social Security Charter “takes these principles and explains what they will mean in practice”6 we may also refer to expectations set out in the Charter when scrutinising draft regulations. When we report on the Charter we may have regard tohuman rights. Together, these functions provide a broad and robust remit to hold Ministers to account for delivering a system that lives up to the

1 See: http://www.legislation.gov.uk/asp/2018/9/contents/enacted 2 Section 22(1) of the Social (Security) Scotland Act 2018 3 Carer’s assistance, cold-spell heating assistance, winter heating assistance, disability assistance, early years assistance, employment-injury assistance, funeral expense assistance, housing assistance and short-term assistance. 4 Section 22(5) of the Act sets out further detail about what the relevant instruments might be: http://www.legislation.gov.uk/asp/2018/9/section/22/enacted 5 Section 1 of the Social (Security) Scotland Act 2018 sets out the eight social security principles: http://www.legislation.gov.uk/asp/2018/9/section/1/enacted 6 Social Security Charter, p4: https://www.gov.scot/publications/charter/

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principles, human rights obligations and the expectations set out in the Social Security Charter.

SCoSS intends to be open and accessible about how we go about our work. We have therefore developed a draft scrutiny framework that integrates both the principles and human rights, which we will use as a tool for scrutinising draft regulations as they develop (See ANNEX B). In so doing, we may also collect information relevant to reporting on the Social Security Charter. The draft framework covers the whole end-to-end process, from policy intention, development, design and delivery, right through to continuous improvement, monitoring and evaluating impact. It does not mean that our scrutiny of regulations will always cover everything. It might depend on exactly what the regulations cover. Or we might want to focus on one or two key points. It also does not mean that our scrutiny reports will always follow the sequence of main headings in the framework.

The framework means that everyone will know the kinds of questions we have asked and the kinds of evidence that we intend to consider. It also allows us to be held to account against the framework for how we carry out our scrutiny and the conclusions that we reach. The Commission will consider how it can best seek wider feedback on the development and improvement of the framework on an ongoing basis. We will also consider how this and all our work can be communicated accessibly and inclusively. The draft framework is annexed to this report for information.

The members of this Commission care deeply about social security and the critical importance of its role as an investment in people’s lives and in Scottish society. We are committed to playing our role in supporting the delivery of a system that lives up to the social security principles, a human rights based approach and the expectations set out in the Social Security Charter. We will also aim to reflect these in the way we ourselves carry out our work; adding value to existing scrutiny processes on behalf of the people of Scotland and providing constructive challenge to help ensure that positive ambitions translate into positive improvements to people’s lives.

Dr Sally Witcher OBE (Chair) Ms Sharon McIntyre Ms Judith Paterson Dr Mark Simpson

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Summary

The Commission’s overall view is that the Young Carer Grant is a welcome and progressive policy intervention and that the policy aims are consistent with the social security principles and the Scottish Government’s human rights obligations. The Grant will mean that Scotland is the only UK social security jurisdiction in which the needs of an often overlooked group have been identified and an attempt made to address them. It is important too that the Scottish Government is not thinking about the Grant as a singular intervention but rather as part of a wider package of support to help young carers realise their social, economic and cultural rights. It is our hope that this package of support will continue to evolve and grow over time, as the impact is measured.

But as our analysis and recommendations make clear, further work is required to ensure that the Scottish Government’s policy aims will be fully realised. This applies in particular to addressing engagement and eligibility gaps, revisiting the proposed definition of care and offering a more flexible set of rules relating to the qualifying period. In future, it is desirable that more detailed analysis is presented which demonstrates how payment levels were arrived at and the extent to which it is likely to support delivery of the policy aspiration and the principle that social security should contribute to the reduction of poverty.

The Commission looks forward to the Scottish Government’s response and welcomes views on how its scrutiny and reporting can be continuously improved.

Recommendations

Recommendation 1: The Commission invites the Scottish Government to provide information on any specific engagement or consultation undertaken with equalities groups, those from seldom-heard groups and cared-for people.

Recommendation 2: In the event that there was no specific engagement or consultation undertaken by Scottish Government with equalities groups, those from seldom heard groups and cared-for people on this occasion, the Commission recommends that it seeks to improve its approach to engaging with a broader range of people directly affected by a proposed policy as a matter of priority.

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Recommendation 3: The Commission recommends that the Scottish Government give consideration to the case for extending eligibility, now or in the future, to young adults over the age of 18 not eligible for Carer’s Allowance and invites Scottish Government to provide information on projected costs.

Recommendation 4: The Commission invites the Scottish Government to reflect on how it might address the identified eligibility gap in relation to young people delivering care to people not in receipt of a qualifying benefit, and to comment on whether the devolution of disability benefits may provide a means to help achieve this.

Recommendation 5: The Scottish Government is invited to provide more clarity on the evidence base, and process undertaken, to identify £300 as an appropriate, adequate level of payment; and to comment on the extent to which it believes the grant will deliver on its policy aims.

Recommendation 6: The Scottish Government is invited to comment on what it sees as the appropriate balance between different forms of support for young carers and how it will ensure that the value of YCG is not eroded by reductions or deficits elsewhere.

Recommendation 7: The Scottish Government is invited to provide more clarity on the extent to which it expects the YCG will do more than contribute towards the meeting of basic subsistence needs and whether this reflects the Scottish Government’s policy aims.

Recommendation 8: The Commission invites the Scottish Government to consider whether the rules relating to the qualifying period can be adapted to mitigate the risks that it could negatively impact people who care for those with fluctuating conditions and that it is insufficiently flexible to reflect the needs and circumstances of young people.

Recommendation 9: The Commission recommends that the Scottish Government abolishes the proposed definition of care in favour of a more flexible approach. The Commission’s view is that the Scottish Government’s welcome aim of providing greater clarity could be better achieved through improved guidance and targeted outreach activity.

Recommendation 10: The Scottish Government is invited to clarify what will constitute a valid claim, including evidence requirements, for the YCG; taking account of the Commission’s view that the approach should be as flexible and accessible as possible.

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Recommendation 11: The Scottish Government should check with DWP that the term “Invalid Care Allowance” is obsolete and, if so, consider removing reference to it from the draft regulations.

Recommendation 12: The Scottish Government is invited to consider whether Regulation 7(1) could be phrased more clearly to avoid risk of confusion about what counts as being “in receipt” of carer’s assistance.

Recommendation 13: The Scottish Government is invited to consider whether the exception made in regulation 7(4)(b) could be broadened to encompass other circumstances than the death of the original YCG recipient, where caring responsibilities reasonably shift between young people.

Recommendation 14: The Scottish Government is invited to consider whether regulation 11 as drafted makes adequate provision for other circumstances in which it would be reasonable to expect that Scottish Ministers would award a Grant without application.

Recommendation 15: The Commission invites the Scottish Government to consider whether the regulations could be strengthened to underline that the form YCG is given in is wholly the choice of young carers, and invites Scottish Government to comment on how it will ensure young carers are fully informed about this and to outline the options that can be offered, as shaped by the consultation.

Recommendation 16: The Scottish Government is invited to clarify whether Schedule 2 of the Social Security (Scotland) Act 2018 leaves scope for different definitions of “regular and substantial care” to appear in different sets of regulations. If so, the Scottish Government is invited to offer a view on whether this risks inconsistency, complexity and confusion.

Recommendation 17: Building on the analysis and recommendations offered throughout this report, the Commission recommends that the Scottish Government monitors, evaluates or researches:

a) The real world use and impact of the Grant and the extent of thepositive difference YCG has made to young carers’ lives

b) The extent to which this suggests that the policy aims have beenfulfilled. If the policy aims have not been fulfilled, what factors haveprevented this?

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c) The extent to which the £300 grant is meeting the ScottishGovernment’s ambitious policy aims and whether the evidencesuggests this sum should be revisited.

d) The extent to which the Grant contributed to a reduction in povertyfor the people who receive it.

e) If the Scottish Government does not rethink the qualifying period,whether there is evidence of an impact on take-up, includingamong specific groups of young carers.

f) If the Scottish Government does not follow the Commission’srecommendation on reverting to a broader definition of care, itshould seek to evaluate the impact of the new definition.

g) Gather evidence of varying take-up or wider impact on youngcarers with protected characteristics, intersectional characteristicsor those belonging to seldom heard groups.

h) Gather evidence of the impact of the YCG on young women inparticular

i) Monitor the impact, should people subject to immigration controlbe granted exemption.

j) To monitor the impact of the operational approach to determiningwhat should constitute a valid claim e.g. is this encouraging orrestricting applications.

k) Consider whether the eligibility rules for devolved disabilitybenefits, once decided, have implications for the eligibility andimpact of YCG.

l) Consider the interface of YCG when developing Carers Assistanceto prevent or remedy undesirable inconsistencies orcomplexity.

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1. Introduction

The Commission came into existence at a time when the process of developing Young Carer Grant (YCG) regulations was already well advanced. It was thus necessary to set up the new body, develop ways of working and apply them within a very tight timeframe. Therefore, this is a new process for the Commission, the Scottish Government and the Scottish Parliament. For these reasons, this report – though robust in its analysis – may not fully reflect how the Commission approaches similar scrutiny processes in future. It may also be the case that this report raises issues that can, or could have been, readily addressed had the Commission had the opportunity for earlier engagement from the outset and during the development process.

In developing this report, we met with lead officials at our first meeting held over 21 and 22 February 2019. We also considered evidence drawn from the Scottish Government’s consultation document, the analysis report of responses to that consultation, the report on YCG published by the Social Security Committee and the advice of the Expert Advisory Group on Disability and Carers Benefits. The draft regulations were formally referred to the Commission on 30 April.

With regard to human rights, in addition to the usual instruments that can be expected always to apply, the UN Convention on the Rights of the Child (UNCRC) is of direct relevance to these regulations7. The UN Convention on the Rights of Persons with Disabilities (UNCRPD) may also indirectly have some bearing as it sets out the state’s duty to provide adequate social support and protection schemes for ensuring independent and community living 8.

The report begins with an examination of the Scottish Government’s policy intention and the engagement it undertook to inform policy development. It then sets out detailed scrutiny of the regulations. It closes with recommendations on key issues for monitoring and evaluation, to ensure that that policy objectives are met and with a view to achieving continuous improvement.

7 In particular, Article 3: https://www.unicef.org/child-rights-convention/convention-text 8 In particular, Article 4, 3. (General Obligations, involvement of people with disabilities); General Article 19 (independent living). See: https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities/convention-on-the-rights-of-persons-with-disabilities-2.html

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2. Policy intention

The Commission welcomes the creation of a Young Carer Grant (YCG); a form of assistance that does not exist in the current UK system. The Scottish Government’s aim for the new Grant is commendable and clearly stated in the consultation document 9as to:

“provide support during a key transition period in young carers’ lives to help improve their health and education outcomes as they move into the adult world. . .”10

This document further provides welcome recognition that:

“For many young adults with significant caring responsibilities, their opportunities may be limited by their caring role. The aim of the Young Carer Grant is to . . . help improve their quality of life and break down barriers, so that young carers can access opportunities that are the norm for many other young people.”11

Young people aged 16-18 are often at a transition point in their lives as they move into adulthood. They may be finishing school, getting their first job or entering post-16 education. The consultation document provides evidence that young carers have poorer physical and mental wellbeing than non-carers, are considerably more likely to live in the most deprived areas of Scotland and disproportionately to experience social isolation. The Commission welcomes the Scottish Government’s work to highlight the evidence underpinning these aims.

These policy aims thus appear to reflect Scotland’s responsibilities under the international human rights framework, in particular, to support young carers to more fully participate in society and to strengthen their opportunities to realise their wider social, economic and cultural rights. They indicate that the Scottish Government is taking seriously its commitment to a human rights based approach and that it is thinking widely about how new forms of assistance can support people to realise a whole range of human rights as opposed to a more narrow focus on the right to social security. This is also consistent with the principle that “social security is a human right and essential to the realisation of other human rights”12.

9 See: https://consult.gov.scot/social-security/consultation-on-young-carer-grant-regulations/ 10 Consultation on Young Carer Grant Regulations, p6 11 ibid 12 Principle (b) in Section 1 of the Social (Security) Scotland Act 2018

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The overall ambition of the Scottish Government’s policy intent therefore seems well aligned with human rights and social security principles. Consistency with the design of the Grant as set out in the draft regulations is considered as applicable throughout the report.

3. Policy development

Social security principles include co-design of the social security system with the people of Scotland, and continuous improvements in putting the needs of the user first and the advancement of equality and non-discrimination13. Human rights encompass rights to participation14. This means that the Commission has a duty to examine not just the content of regulations but the process of participation and engagement that informed their development.

There is good evidence that the Scottish Government has engaged with young carers and the organisations that represent them. Working with young carers to develop the Grant shows respect for children’s’ right to a say on decisions affecting them15. The Scottish Government has also sought the advice of the Expert Advisory Group on Disability and Carers Benefits16. However, the Commission is not aware that the Scottish Government has taken adequate, proactive steps to identify, engage with or explore the specific requirements of young carers who have protected characteristics, intersecting equality characteristics, or who belong to seldom-heard groups. Focussed engagement with these groups is always likely to be crucial since their needs and circumstances can sometimes vary substantially and in specific ways to those of the majority. Some seldom heard groups may be especially likely to experience acute disadvantage and barriers. The fact they are ’seldom heard’ is both a symptom of this and compounds it, making it all the more important that they are given the opportunity to participate in the policy making process.

Regarding protected characteristic groups, a good example is the evidence17 that young women are more likely than young men to assume traditional gender roles such as caring responsibilities, and that

13 Principles (f) and (g) ii in Section 1 of the Social (Security) Scotland Act 2018 14 See ‘PANEL’ principles: http://www.scottishhumanrights.com/rights-in-practice/human-rights-based-approach/ 15 Article 12 UNCRC. See: : https://www.unicef.org/child-rights-convention/convention-text 16 An independent group of experts who provide policy advice to the Scottish Government. See: https://www.gov.scot/groups/disability-carers-benefits-expert-advisory-group/ 17 Consultation on Young Carer Grant Regulations, p14: https://www.gov.scot/publications/consultation-young-carer-grant-regulations/#res540446

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this can result in lifelong disadvantage. Focussed engagement with young female carers would therefore have been worthwhile, if not specifically carried out.

Similarly, there is little evidence that the Scottish Government has undertaken proactive engagement with the people who are supported by young carers. It is the Commission’s view that this group will have a valuable perspective into the nature and scale of the challenges faced by young carers as well. Moreover, it is imperative that both parties have choice and control over caring arrangements and that neither feel compelled or coerced into a carer/cared-for relationship of a kind they would not want. This appears to be in keeping with the draft general comment on Article 19 of the UNCRPD18 that requires states to provide adequate social support and protections schemes for ensuring independent and community living. This by implication could encompass the needs of care-givers whose contribution might be key to the ‘cared-for’ person’s enjoyment of that right. This consideration is reinforced by the fact that cared-for people will often be the parent or another close family member of the young carer. Their views on the barriers and solutions for supporting young carers could therefore provide evidence of considerable value.

Recommendation 1: The Commission invites the Scottish Government to provide information on any specific engagement or consultation undertaken with equalities groups, those from seldom-heard groups and cared-for people.

Recommendation 2: In the event that there was no specific engagement or consultation undertaken by Scottish Government with equalities groups, those from seldom heard groups and cared-for people on this occasion, the Commission recommends that it seeks to improve its approach to engaging with a broader range of people directly affected by a proposed policy as a matter of priority.

4. Policy content issues

4.1 Age of eligibility

18 See: https://www.ohchr.org/EN/HRBodies/CRPD/Pages/DGCArticle19.aspx .

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The Scottish Government has amended the version of the regulations that were consulted on so as to extend eligibility to all young carers aged 16-18, irrespective of their educational or employment status. This is awelcome and progressive step that responds positively to the viewsexpressed during the Scottish Government’s consultation.

However, the amended version still does not address the evidence presented in responses to the consultation, and to the Social Security Committee, that the originally proposed criteria do not extend entitlement to the full range of people who may accurately be described as young carers. In particular, there will remain an absence of social security support for young adults over the age of 18 who provide fewer than 35 hours of care per week, or who are in full-time education. Young adults falling into these groups are also living through periods of transition and will face very similar challenges and barriers to their slightly younger peers. Yet under the present proposals they will not receive the YCG and will continue to be ineligible for UK Carer’s Allowance.

The Commission recognises that the resources available to the Scottish Government are not without limit. But it observes that this is a clear eligibility gap and one that appears to run contrary to the stated policy intention underpinning the design of YCG. If not financially feasible to extend eligibility now, the Commission suggests this might be given early consideration in line with social security principle (g) (also reflected in the Charter) and the human rights provision regarding progressive realisation.19This may be something to address in the context of the future design of carer’s assistance.

Recommendation 3: The Commission recommends that the Scottish Government give consideration to the case for extending eligibility, now or in the future, to young adults over the age of 18 not eligible for Carer’s Allowance and invites Scottish Government to provide information on projected costs.

4.2 Qualifying benefits

Eligibility for YCG will depend on the cared-for person being in receipt of certain disability benefits. ‘Passporting’ of this kind is often useful and can help simplify the undoubted complexity of the overall social security

19 Principle (g) in Section 1 of the Social (Security) Scotland Act 2018; Art 2(1) International Convention on Economic, Social and Cultural Rights (ICESCR): https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx

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system. But passporting can also reinforce inequality and exclusion. In the case of YCG, the reliance on qualifying benefits could create a further eligibility gap in relation to young people delivering care to people not in receipt of a qualifying disability benefit. For example, the assessment processes for Personal Independence Payment (PIP) have been criticised as going wrong for many people. This may have the effect of excluding young people delivering care in difficult circumstances, yet who nonetheless have been formally identified as entitled to support from public authorities under the Carers (Scotland) Act 2016.

One way of resolving this issue may be to use the impending devolution of disability benefits to introduce rules and processes that would allow a broader range of people to qualify for disability assistance that would enable more young carers to ‘passport’ onto the YCG.

Recommendation 4: The Commission invites the Scottish Government to reflect on how it might address the identified eligibility gap in relation to young people delivering care to people not in receipt of a qualifying benefit, and to comment on whether the devolution of disability benefits may provide a means to help achieve this.

4.3 Payment levels

In scrutinising draft regulations, the Commission will seek to be informed about the evidence used when establishing the level of payment envisaged and determining whether this will be sufficient to deliver the Scottish Government’s policy objectives. UN guidance on the right to social security is clear that the adequacy of social security protection is a pivotal human rights concept. Furthermore, social security principle (e) concerns the Scottish social security system’s contribution to reducing poverty.

It is undeniable that an additional £300 represents an improvement on the level of support currently available to young carers. The fact that the Scottish Government has secured an agreement with the UK Government that receipt of YCG will not negatively impact on eligibility for other benefits is also welcome. It is helpful too that the Scottish Government intends to use eligibility for the Grant as a means of

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identifying young carers and passporting them to other forms of assistance20.

From a human rights perspective, all of this is welcome and positive. Under 18s have rights under the Convention on the Rights of the Child (UNCRC) that the grant may help protect. The Scottish Government must treat the best interests of children affected by its policies as a primary consideration.21 Identifying the problems facing young carers and putting in place new support is a sign that the Government is doing this. The Commission also accepts that the Grant may help support young carers’ health, development, education and leisure opportunities; potentially helping reduce material deprivation. The Grant and its role as a passport to other forms of support are therefore a welcome step in the right direction. But how big is that step?

The stated policy aims for YCG appear ambitious when set against the situation many young carers find themselves in. The Commission is not aware of any supporting evidence of detailed analysis undertaken by the Scottish Government that provides a clear rationale for how the figure of £300 was arrived at. Neither has the Commission seen analysis from the Scottish Government to suggest that an annual grant of £300 will be sufficient to achieve its policy aims. In these circumstances it is difficult for the Commission to provide informed scrutiny of the payment level. However, there is a risk that the Scottish Government’s full aspirations for the Grant will not be met by what may be considered a relatively modest annual payment.

Recommendation 5: The Scottish Government is invited to provide more clarity on the evidence base, and process undertaken, to identify £300 as an appropriate, adequate level of payment and to comment on the extent to which it believes the grant will deliver on its policy aims.

It can be helpful when gauging adequacy and promoting joined-up policy to consider the role of social security within the wider context of support. YCG thus needs to be viewed in the context of support available to young carers, notably local authority provision under the Young Carers (Scotland) Act 2016, social care and the complex interaction between social security and post-16 student support. In particular, the intended balance between the contributions and distinct goals of different forms of

20 Scottish Government intends to provide YCG recipients with free bus travel from 2020/21 (subject to successful piloting) and to roll out a new carer element to the Young Scot National Entitlement Card, providing non-cash benefits for young carers aged 11-18. 21 Article 3 of the UNCRC: https://www.unicef.org/child-rights-convention/convention-text

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support need to be considered when gauging whether the amount of social security payment is adequate in that context. Furthermore, there may be scope for increases in one form of support to be offset by reductions in others, or to be subsumed by pre-existing deficits in others.

Recommendation 6: The Scottish Government is invited to comment on what it sees as the appropriate balance between different forms of support for young carers and how it will ensure that the value of YCG is not eroded by reductions or deficits elsewhere.

The focus of the policy aims for YCG are on improving the health and educational outcomes and opening up access to opportunities for young carers. The Scottish Government has cited statistics in support of the Grant which demonstrate that young carers disproportionately experience poverty and social exclusion. There may therefore be a risk that young people in this position are left with little option but to use YCG to support the household’s basic subsistence needs. The extent to which YCG is available to go beyond that, as seems indicated to be the intention, may therefore be questionable.

Recommendation 7: The Scottish Government is invited to provide more clarity on the extent to which it expects the YCG will do more than contribute towards the meeting of basic subsistence needs and whether this reflects the Scottish Government’s policy aims.

4.4 Hours of care

It is welcome that the Scottish Government intends to set the required hours of care at 16 as opposed to the 35 hour threshold associated with UK Carer’s Allowance. The Commission regards this as an appropriate recognition of the competing pressures faced by young carers as they potentially juggle caring, education and employment. It is also welcome that the Scottish Government has made provision to ensure that young carers will be able to reach the 16 hour threshold by aggregating care provided to three cared-for people.

But the Commission is concerned that unintended consequences may flow from the strictness of the rules around the qualifying period. The regulations propose a qualifying period of 13 weeks and require that care must have been provided in each and every week, totalling an average of 16 hours per week across the period.

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These rules are incompatible with the needs of young people delivering care to those with fluctuating conditions. A remission of symptoms for even a week would render such a carer ineligible. Even if the requirement to deliver care in each week was relaxed, the relatively short qualifying period of 13 weeks is still insufficiently flexible. For example, even a relatively brief period of 5 weeks respite over the three month period, would require a young carer to provide an average of 26 hours of care over the remaining 8 weeks - a 62% increase on the 16 hours identified by the draft regulations as a fair weekly average. The Commission’s view is that could create an unfair position whereby many young carers are excluded by a rule which takes account of only a brief snapshot in time rather than their broader circumstances.

The Commission further considers that inflexibility of the qualifying period undermines the Scottish Government’s key policy aim of supporting young carers through a period of transition. The rules do not take account of many legitimate circumstances in which a young person may not be in a position to provide care temporarily e.g. if they are studying for exams, have a much needed break in which care is provided by another person (which should be encouraged not penalised) or they themselves suffer a period of ill health.

Recommendation 8: The Commission invites the Scottish Government to consider whether the rules relating to the qualifying period can be adapted to mitigate the risks that it could negatively impact people who care for those with fluctuating conditions and that it is insufficiently flexible to reflect the needs and circumstances of young people.

4.5 Definition of care

One of the Commission’s chief concerns is that the draft regulations introduce a definition of care that is unnecessary and overly prescriptive. The draft regulations state that the care provided must:

Assist with the day to day physical tasks and needs of the personbeing cared for (for example, eating and washing)

Relate to the mental processes associated with those tasks andneeds (for example, the mental process of remembering to eat andwash) or

Otherwise involve activity that promotes the physical, mental oremotional well-being of the person being cared for

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The Commission understands that the Scottish Government’s rationale for introducing this criteria is to bring greater clarity about what counts as care, making it easier for young people to recognise that tasks they may regard as routine in fact count towards eligibility. This is a laudable aim. But the Commission is concerned that the definition provided may in practice achieve the opposite outcome; instead increasing complexity and reducing take-up.

Moreover, the Commission welcomes evidence that the Scottish Government is thinking creatively about how best to give effect to its legal duty to promote take-up of the YCG. For example, the intention to promote take-up using social media platforms and channels that young people are receptive to. It may be that this, and perhaps accessible guidance, would be better routes to enabling young people to identify themselves as young carers

The Commission also observes that the proposed definition mostly offers a conception of care that seems rooted in activities that resemble personal rather than social care22; with ‘staying alive’ rather than ‘having a life’. But ‘care’ can mean many other things, such as supporting a disabled person to lead a fuller life and to participate in society in a way that helps them to realise their own wider social, cultural and economic rights, including those set out in the UN Convention on the Rights of Persons with Disabilities.

As the Scottish Government’s Expert Advisory Group on Carers and Disability Benefits has argued; caring dynamics can vary substantially. What counts as care and what individuals consider to be care is a difficult and complex subject. Often, it is also deeply personal to the individuals concerned. The Commission therefore agrees with the Expert Advisory Group’s view that it is challenging to craft a definition that fairly and accurately captures all of the different kinds of support that a young person may be providing. Indeed, the Commission’s view is that the most likely outcome of a more prescriptive definition, however well intentioned, is that it will in practice exclude people in ways that are incompatible with the policy aims.

It is perhaps for this reason that the Carers (Scotland) Act 2016 does not seek to define what care is and offers instead a simple definition of

22 Personal care includes assistance with dressing, feeding, washing and toileting, as well as advice and

psychological support. Social care is the provision of assistance with daily living activities, maintaining

independence, social interaction and allowing the individual to play a fuller role in society

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carers as people who “provide or intend to provide care for another individual”23. Similarly, the regulations for UK Carer’s Allowance, do not seek to define the nature of care, providing only that it must be “regular and substantial”. The risks of departing from such well-established approaches is that it may undermine the policy intention to help people identify as carers, by in practice narrowing the legal definition of what care is. The resultant risk is that a young person may not apply because they do not recognise the support they provide as fitting with this definition, thereby reducing take-up of the Grant in a way that is not intended.

The Commission further observes that the Scottish Government has not identified whether the proposed definition may have implications for the future design of the Scottish replacement for UK Carer’s Allowance or indeed any other form of Carers Assistance that may be introduced under the Social Security (Scotland) Act 2018. If it is retained for Carer’s Assistance, this will present the difficulties already noted in respect of that benefit too; leading to a position where the Scottish system offers a narrower definition of care than the UK. If it is not retained, then this introduces clear scope for increasing inconsistency across Scottish legislation in terms of how care is defined.

The Commission would also welcome more clarity from the Scottish Government over how they intend both the definition of care and the rules around the qualifying period to be put into operational practice. In particular, it is important to understand what evidence will be required from young carers to demonstrate that care of the kind required has been delivered in 13 consecutive weeks and that it is consistent with, for example, “the mental process of remembering to eat and wash.”

For all of these reasons, and without further information to the contrary, the Commission can only conclude that this more prescriptive definition of care: risks lower take-up; increased confusion and administrative complexity; as well as leaving scope for inconsistent decision making and undermining the policy aim.

Recommendation 9: The Commission recommends that the Scottish Government abolishes the proposed definition of care in favour of a more flexible approach. The Commission’s view is that the Scottish Government’s welcome aim of providing greater clarity could be better achieved through improved guidance and targeted outreach activity.

23 Section 1(1) of the Carers (Scotland) Act 2016

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4.6 Valid applications

Draft regulation 4(5) provides that an application for YCG will be considered valid only if it is made in the form and accompanied by the evidence that is required by Scottish Ministers. However the Scottish Government has not yet explained what will constitute a valid application under this rule e.g. exactly what kind and level of evidence will be required and in what form or formats applications can be made. The regulations are silent on these matters and the consultation document states only that this information will be made available upon completion of further service design work.

The Social Security Charter commits the Scottish Government to the design of processes that are accessible and which take account of individual needs. In line with this, the Commission’s view is that guidance on what constitutes a valid claim should be as flexible and generous as is reasonably possible. It is likely that many young carers will be engaging with the social security system for the first time. They may have little access to the kinds of information and paperwork that may be considered pertinent and can reasonably be expected to have minimal experience of navigating a potentially complex administrative process. There may also be a risk that young people may be less confident than others with more experience about challenging or re-applying in circumstances where an application is judged invalid. In these circumstances, it is important that reasonable adjustments are made in order that applications and dates of claim can be preserved e.g. by offering proactive advice and making follow-up enquiries where further information is needed.

A possible anomaly that could theoretically arise as a consequence of the current drafting of the regulations might concern the (presumably rare) event whereby applications for YCG are received from two young carers providing care for the same person. If application A with insufficient evidence is received on Monday, application B with all necessary evidence is received on Wednesday and then the outstanding evidence for application A comes in on Friday, the decision maker needs to know which application should be treated as having been received ‘first’, as this is the one that will get the grant.

Recommendation 10: The Scottish Government is invited to clarify what will constitute a valid claim, including evidence requirements,

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for YCG, taking account of the Commission’s view that the approach should be as flexible and accessible as possible.

4.7 Applicants subject to immigration control

Draft Regulation 7(6) excludes from eligibility people subject to immigration control. This is a relatively standard provision for social security benefits that aligns to the reserved immigration policy of the UK Government. The Commission understands that the Scottish Government intends to approach the Home Office with a view to seeking an exception to this rule in relation to YCG. The Commission encourages this intention; recognising that many young people with no recourse to public funds will be living in particularly difficult circumstances, with very limited access to resources that will restrict their human rights under UNCRC.

5. Drafting issues

5.1 References to “Invalid Care Allowance”

The draft regulations make a number of references to “Invalid Care Allowance”. The Commission understands that this term is obsolete and has been for a considerable period since being replaced by the term “Carer’s Allowance”. Moreover, this historical term is outdated and incompatible with the commitment in the social security principles to respect and dignity.

Recommendation 11: The Scottish Government should check with DWP that the term “Invalid Care Allowance” is obsolete and, if so, consider removing reference to it from the draft regulations.

5.2 Possible circularity

The way that draft regulation 7(1) is framed may introduce a degree of circularity. It provides that an applicant is not entitled to a grant if, on the day of their application, they are in receipt of Carer’s Allowance or Carer’s Assistance payable under the Social Security (Scotland) Act 2018. However Young Carer Grant is itself a form of carer’s assistance under the 2018 Act. There is a risk that the provision may imply that an

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applicant cannot receive Young Carer Grant if they are in receipt of a Young Carer Grant.

The Commission accepts that the provision is not necessarily incorrect. The YCG is not an ongoing payment and can be claimed only once every 12 months. This means that if a person is in receipt of a ‘current’ YCG (i.e. one paid within the last 12 months) then they are ineligible for another. In a technical sense the drafting therefore works. But it is potentially confusing and carries a risk that applicants, decision makers and welfare rights advisors could misinterpret what counts as being “in receipt” of carer’s assistance and incorrectly conclude that an individual is ineligible.

Recommendation 12: The Scottish Government is invited to consider whether Regulation 7(1) could be phrased more clearly to avoid risk of confusion about what counts as being “in receipt” of carer’s assistance.

5.3 Widening exceptions to one grant for each cared for person

Draft regulation 7(4)(b) introduces an exception to the rule that only one person can receive a YCG in relation to a cared for person in circumstances where the recipient of the original Grant dies.

While this exception is welcome, the Commission observes that there are other reasonable and legitimate circumstances in which caring responsibilities between young people will unavoidably shift. For example, the original recipient may fall ill, become incapacitated or accept an employment or educational opportunity abroad. In such circumstances it seems reasonable that if another young person assumes the outstanding caring responsibilities, they too should be eligible for support.

Recommendation 13: The Scottish Government is invited to consider whether the exception made in regulation 7(4)(b) could be broadened to encompass other circumstances than the death of the original YCG recipient, where caring responsibilities reasonably shift between young people.

5.4 Determination following backdated award of assistance

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Draft regulation 11 allows Scottish Ministers to award a Grant without application. This power would be exercised in circumstances where a previous YCG application was rejected purely because the cared-for person was not, at the time of application, in receipt of a qualifying benefit. The idea is that if the cared-for person subsequently receives a backdated award of a qualifying benefit as a result of a successful appeal, then it is reasonable to pay the YCG without receipt of a further application. This is a welcome provision that should, subject to effective implementation, have the effect of reducing the burden on young carers to reapply.

However, there are other common ways for a backdated award to come about e.g. following a decision on a claim or following a revision or supersession. Moreover, the Commission observes that draft regulation 11 does not appear to take account of other circumstances in which it is reasonable that Scottish Ministers should seek to overturn a previous decision without application, notably, upon discovery of official error in the YCG determination. In these circumstances, as things stand, the onus would appear to remain on the young carer to reapply.

Recommendation 14: The Scottish Government is invited to consider whether regulation 11 as drafted makes adequate provision for other circumstances in which it would be reasonable to expect that Scottish Ministers would award a Grant without application.

5.5 Payment in kind

Schedule 2 part 2, paragraph 11(1) of the Social Security (Scotland) Act 2018 stipulates that carer’s assistance regulations “may allow carer’s assistance to be given to an individual in a form other than money only if the individual (or a person acting on the individual’s behalf) has agreed to the assistance being given in that form”. Draft regulation 12 (3) provides that YCG is to be given in the form of a single payment of £300, unless the applicant agrees to an offer from Scottish Ministers to accept the Grant in a form other than money. While the Commission broadly welcomes scope for flexibility about the form the Grant takes, it would be desirable to emphasise that, while the Scottish Government may offer a range of options, it is wholly the young carer’s choice to make, and that choice must be fully informed. Young carers need to feel confident that they are under no compulsion to accept an ‘offer’.

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Recommendation 15: The Commission invites the Scottish Government to consider whether the regulations could be strengthened to underline that the form YCG is given in is wholly the choice of young carers and invites Scottish Government to comment on how it will ensure young carers are fully informed about this and to outline the options that can be offered, as shaped by the consultation.

5.6 Multiple definitions of “regular and substantial” care

Paragraph 1 of Schedule 2 of the Social Security (Scotland) Act 2018 requires that carer’s assistance regulations must be framed so that eligibility depends on the provision of “regular and substantial care.” Further provision is made to allow carer’s assistance regulations to define “the circumstances in which an individual is to be regarded as having provided regular and substantial care to another individual during a period”. However the Act does not elaborate on whether this would allow for different sets of carer’s assistance regulations (e.g. for YCG and Carer’s Allowance) to define “regular and substantial” in different ways. Similar to the points made about the definition of care, this would appear to leave scope for substantial inconsistencies across different forms of carer’s assistance for what counts as “regular and substantial” provision of care. Whether or not this is legally permissible, and the Commission has not had the opportunity to take independent legal advice on this matter; and whether or not such flexibility is helpful or risks creating complexity and confusion, the rationale for the same provision being differently defined in different contexts would benefit from clarification.

Recommendation 16: The Scottish Government is invited to clarify whether Schedule 2 of the Social Security (Scotland) Act 2018 leaves scope for different definitions of “regular and substantial care” to appear in different sets of regulations. If so, the Scottish Government is invited to offer a view on whether this risks inconsistency, complexity and confusion.

6. Policy impact and improvement

The Commission’s view is that upholding human rights to progressive realisation and the continuous improvement enshrined in the social

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security principle (g) can only be achieved if there are effective mechanisms in place to monitor and evaluate the impact of specific social security policy interventions. Over time, such evaluation would provide a rich source of evidence to support effective scrutiny and informed policy development. Below the Commission proposes a number of relevant matters worthy of more detailed monitoring, evaluation or research.

Recommendation 17: Building on the analysis and recommendations offered throughout this report, the Commission recommends that the Scottish Government monitors, evaluates or researches:

Meeting the policy intent

a) The real world use and impact of the Grant and the extent ofthe positive difference YCG has made to young carers’ lives.

b) The extent to which this suggests that the policy aims havebeen fulfilled. If the policy aims have not been fulfilled, whatfactors have prevented this?

Payment level

c) The extent to which the £300 grant is meeting the ScottishGovernment’s ambitious policy aims and whether theevidence suggests this sum should be revisited.

d) The extent to which the Grant contributed to a reduction inpoverty for the people who receive it.

Qualifying period

e) If the Scottish Government does not rethink qualifying period,whether there is evidence of an impact on take-up, includingamong specific groups of young carers.

Definition of care

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f) If the Scottish Government does not follow the Commission’srecommendation on reverting to a broader definition of care,it should seek to evaluate the impact of the new definition.

Equality and Diversity

g) Gather evidence of varying take-up or wider impact on youngcarers with protected characteristics, intersectionalcharacteristics or those belonging to seldom heard groups.

h) Gather evidence of the impact of the YCG on young women inparticular.24

i) Monitor the impact, should people subject to immigrationcontrol be granted exemption.

Valid claims

j) To monitor the impact of the operational approach todetermining what should constitute a valid claim e.g. is thisencouraging or restricting applications.

Future implications

k) Consider whether the eligibility rules for devolved disabilitybenefits, once decided, have implications for the eligibilityand impact of YCG.

l) Consider the interface of YCG when developing CarersAssistance to prevent or remedy undesirable inconsistenciesor complexity.

24 General Comment 20 of the UN Committee on the Right of the Child stresses that adolescence is a

time when girls in particular can be pushed into traditional gender roles that result in lifelong disadvantage. The provision of unpaid care seems likely to be an example of this, as reflected in the Scottish Government’s consultation document, where it is stated that 55% of young carers are female. As the consultation document notes, if young women are more likely to become carers, then they will be the main beneficiaries of YCG, which to an extent may lessen the disadvantage identified by General Comment 20. But it is also possible young female carers might benefit even more from non-social security measures (outside the scope of the Commission’s work) to e.g. reduce their caring load. But it is unclear whether this more subtle point has been considered.

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ANNEX A: Young Carer Grant Draft Regulations

D R A F T S C O T T I S H S T A T U T O R Y I N S T R U M E N T S

2019 No.***

SOCIAL SECURITY

The Carer’s Assistance (Young Carer Grants) (Scotland) Regulations

2019

Made - - - - *** 2019

Coming into force in accordance with regulation 1

CONTENTS

PART 1

Introductory and interpretation 1. Citation and commencement

2. Interpretation

PART 2

Eligibility 3. Overview

4. Making of applications

5. Conditions relating to the care being provided

6. Conditions relating to the person being cared for

7. Further eligibility conditions

8. Conditions relating to residence

PART 3

Procedural matters 9. Periods for redetermination requests

10. Multiple applications involving care of the same person

11. Determination following backdated award of assistance

PART 4

Assistance to be given 12. Amount and form of young carer grants

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The Scottish Ministers make the following Regulations in exercise of the powers conferred by sections 28,

41(4)(a), 43(5) and 52 of the Social Security (Scotland) Act 2018(25) and all other powers enabling them to

do so.

In accordance with section 96(2) of that Act, a draft of this instrument has been laid before and approved by

resolution of the Scottish Parliament.

In accordance with section 97(2) of that Act, the Scottish Ministers have consulted the Scottish Commission

on Social Security.

PART 1

Introductory and interpretation

Citation and commencement

These Regulations may be cited as the Carer’s Assistance (Young Carer Grants) (Scotland) Regulations

2019 and come into force on the first Monday after the day on which they are made.

Interpretation

In these Regulations—

“applicant” means a person who has applied for a young carer grant,

“determination” means a determination of an individual’s entitlement under section 37 of the Social

Security (Scotland) Act 2018,

“the qualifying period” means the period of 13 weeks described in regulation 5(1),

“young carer grant” means the grant provided for by these Regulations.

PART 2

Eligibility

Overview

—(1) A person who applies for a young carer grant (the “applicant”) is entitled to receive it if that person

meets the conditions prescribed in these Regulations.

(2) Regulation 4 describes conditions about the making of applications, including those related to the age

of the applicant.

Regulation 5 describes conditions relating to the care being provided and regulation 6 describes conditions

relating to the person or persons being cared for.

Regulation 7 describes further conditions relating to receipt of assistance and the status of the applicant.

Regulation 8 describes conditions relating to the applicant’s residence.

Part 3 provides timescales for some procedural matters, including situations that involve multiple

applications relating to care of the same person, and describes when the Scottish Ministers must determine

that an individual is entitled to a young carer grant without an application.

Regulation 12 describes the assistance that an applicant is entitled to receive.

(25) 2018 asp 9. The powers to make these Regulations are exercised together by virtue ofsection 33(2) of the Interpretation and Legislative Reform (Scotland) Act 2010 (asp 10). TheseRegulations are subject to the affirmative procedure by virtue of section 33(3) of that Act.

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Making of applications

—(1) A person is only entitled to a young carer grant if, on the day their application for that assistance is

made, they are aged at least 16 and are under the age of 19.

(2) In a non-leap year, the birthday of a person born on 29th February is to be taken to be 28th February.

An application is to be treated as made on the day it is received by the Scottish Ministers.

In a case where, by virtue of a regulation 11, a determination is to be, or has been, made without an

application, references in these Regulations to the day the application is made are to be read in accordance

with paragraph (4) of that regulation.

For the avoidance of doubt, a thing that purports to be an application is not an application unless it is—

made in the form, and

accompanied by the evidence,

required by the Scottish Ministers under section 38(1) of the Social Security (Scotland) Act 2018.

For the purposes of determining assistance, the period of an application is the period of 13 weeks ending

with the day before the day of the application for a grant and an application in respect of any other period of

13 weeks is to be regarded as an application for a different period, despite any overlap between the two

periods.

Conditions relating to the care being provided

—(1) To qualify for a young carer grant the applicant must have provided care, in each of the 13 weeks

ending with the day before the day on which their application for a grant is made (“the qualifying period”)—

to a person or persons described in regulation 6,

of the type described in paragraph (2),

which was not provided in the manner described in paragraph (3), and

for the number of hours described in paragraph (4).

Care provided must—

assist with the day to day physical tasks and needs of the person being cared for (for example, eating and

washing),

relate to the mental processes associated with those tasks and needs (for example, the mental process of

remembering to eat and wash), or

otherwise involve activity that promotes the physical, mental or emotional well-being of the person being

cared for.

The care must not have been provided by the applicant—

under or by virtue of a contract, unless the contract is of a kind specified by regulations under section

1(3)(a) of the Carer’s (Scotland) Act 2016(26) as not to be regarded as a contract for the purposes

of that Act, or

as voluntary work.

The average number of hours of care provided over the qualifying period must have been at least 16 hours

per week.

Conditions relating to the person or persons being cared for

—(1) To qualify for a young carer grant the person or persons being cared for must, throughout the

qualifying period and on the day the application for assistance is made, each be a person to whom a qualifying

disability benefit is normally payable.

(2) An applicant may combine hours caring for up to three persons during the qualifying period.

(26) asp 9.

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(3) In paragraph (1), “qualifying disability benefit” means a disability benefit, or where applicable a

component of a disability benefit, which is of a type, and being paid at a rate, that would entitle a person

who cares for the recipient of that benefit and who meets the relevant qualifying conditions to—

carer’s assistance, payable under section 28 of the Social Security (Scotland) Act 2018,

carer’s allowance, or

invalid care allowance.

In paragraph (3), “carer’s allowance” and “invalid care allowance” both mean an allowance payable under

section 70 of the Social Security Contributions and Benefits Act 1992(27) or section 70 of the Social Security

Contributions and Benefits (Northern Ireland) Act 1992(28).

Further eligibility conditions

—(1) An applicant is not entitled to a young carer grant if, on the day their application is made, the

applicant is in receipt of a benefit listed in regulation 6(3) in respect of any of the persons being cared for.

(2) An applicant is not entitled to a young carer grant if they have applied for a benefit listed in regulation

6(3) in respect of a period that includes the day their application is made, unless it has already been

determined that the applicant is ineligible for that benefit in respect of that day.

An applicant is not entitled to a young carer grant if they have previously received a young carer grant,

unless the day their application is made is at least one year after the day of the application in respect of which

that grant was paid.

If any other person has received a young carer grant in respect of care of any of the persons being cared

for in an application for a young carer grant, the applicant is not entitled to a young carer grant unless—

the day the application is made is at least a year after the day of the application in respect of which that

grant was paid, or the day of the latest such grant, or

the person who received that grant has died.

If an applicant has already received three young carer grants, they are not entitled to a further young carer

grant.

An applicant is not entitled to a young carer grant if, on the day their application is made, they are subject

to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act 1999(29),

unless the applicant falls within a category or description of persons specified in Part 2 of the schedule of

the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000 (persons not

excluded under section 115 of that Act from entitlement to various social security benefits)(30).

Conditions relating to residence

—(1) Subject to paragraphs (2) and (3), to qualify for a young carer grant the applicant must, on the day

their application is made for that assistance, be—

habitually resident in the United Kingdom, the Channel Islands, the Isle of Man, the European Economic

Area or Switzerland, and

ordinarily resident in Scotland.

Paragraph (1)(a) does not apply to the following persons (if they meet the condition in paragraph (1)(b) of

being ordinarily resident in Scotland)—

a refugee within the definition in Article 1 of the Convention relating to the status of refugees done at

Geneva on 28th July 1951, as extended by article 1(2) of the Protocol relating to the status of

refugees done at New York on 31st January 1967,

a person who has been granted, or who is deemed to have been granted, leave outside the rules made

under section 3(2) of the Immigration Act 1971(31), where that leave is—

(27) 1992 c.4. There are amendments to section 70 that are not relevant to these Regulations.(28) 1992 c.7. There are amendments to section 70 that are not relevant to these Regulations.(29) 1999 c.33. There are amendments to section 115 that are not relevant to these Regulations.(30) S.I. 2000/636.(31) 1971 c.77.

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discretionary leave to enter or remain in the United Kingdom,

leave to remain under the destitution domestic violence concession, or

leave deemed to have been granted by virtue of regulation 3 of the Displaced Persons

(Temporary Protection) Regulations 2005(32),

a person who has humanitarian protection granted under the rules made under section 3(2) of the

Immigration Act 1971, or

a person who—

is not subject to immigration control within the meaning of section 115(9) of the Immigration

and Asylum Act 1999(33), and

is in the United Kingdom as a result of deportation, expulsion or other removal by compulsion

of law from another country to the United Kingdom.

An applicant who is not ordinarily resident in the United Kingdom does not need to meet the conditions

in paragraph (1) (and therefore is entitled to a young carer grant) if they—

have previously been properly paid a young carer grant,

have since the day of their application for the young carer grant that was properly paid, or the later of

two such grants, left the United Kingdom to become ordinarily resident in the European Economic

Area or Switzerland, and

meet the other conditions prescribed in these Regulations.

PART 3

Procedural matters

Periods for redetermination requests

—(1) The period for requesting a re-determination of entitlement to a young carer grant, under section 41

of the Social Security (Scotland) Act 2018, is 31 days beginning with the day that the applicant is informed,

in accordance with section 40 of that Act, of the right to make the request.

(2) Where such a request is validly made, the period allowed for re-determination (within the meaning of

section 43 of that Act) is 16 working days beginning with—

the day the request is received by the Scottish Ministers, or

where the request is received by the Scottish Ministers later than the period prescribed by paragraph (1),

the day on which the Scottish Ministers, or on appeal the First-tier Tribunal for Scotland, decide

that the applicant has a good reason for not requesting the re-determination sooner.

For the purpose of paragraph (2), a “working day” is a day other than—

a Saturday,

a Sunday, or

a bank holiday in Scotland under the Banking and Financial Dealings Act 1971(34).

Multiple applications involving care of the same person

—(1) Paragraphs (2) and (3) apply where two or more applicants state that they are caring for the same

person.

(2) The Scottish Ministers must determine which (if any) of the applicants is to be entitled to receive a

young carer grant.

(32) S.I. 2005/1379.(33) 1999 c.33.(34) 1971 c.80. Schedule 1, paragraph 2 sets out the Scottish bank holidays; it is amended by theSt Andrew’s Day (Scotland) Act 2007 (asp 2), section 1.

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(3) Where the applications were made at different times, the Scottish Ministers must determine the

application made first before they determine any other application.

Determination following backdated award of assistance

—(1) The Scottish Ministers are to make a determination of an individual’s entitlement to a young carer

grant without receiving an application where—

an application has previously been made for a young carer grant (“the application”),

the determination made in respect of the application was that the applicant was not entitled to a young

carer grant,

the only reason for the applicant not being entitled to a young carer grant was that a person being cared

for was not during the qualifying period for the application in receipt of a qualifying disability

benefit as required by regulation 6,

the Scottish Ministers establish that—

following an appeal, an award of a qualifying disability benefit has made to the person being

cared for that is a backdated award,

had that award been made before the day of the application, a determination that the individual

is entitled to a young carer grant would have been made instead, and

no other person has received a young carer grant since the day of the application, in respect of care of

the person being cared for.

In making a determination required by paragraph (1) the Scottish Ministers are to use—

the information provided in the application that led to the original determination, and

any other information they have obtained in connection with that application.

Where a determination is to be, or has been, made without an application by virtue of this regulation,

references in these Regulations to the day the application is made are to be read as references to the day the

application that led to the original determination was made.

In this regulation a “backdated award” means an award of assistance for a day, or a period that begins on

a day, that falls before the day the decision to make that award was taken.

PART 4

Assistance to be given

Amount and form of young carer grants

—(1) A young carer grant is to be given as a payment of £300.

(2) A young carer grant is to be given as money (subject to paragraph 0).

If—

the Scottish Ministers offer to give an applicant some or all of the value of a young carer grant in a form

other than money, and

the applicant agrees to be given the grant in that form,

the grant is to be given in that form, unless the applicant withdraws agreement before the grant is given.

[***]

St Andrew’s House,

Edinburgh

*** 2019

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EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations make provision under section 28 of the Social Security (Scotland) Act

2018 for payments to be made to help young persons who care for disabled persons.

Part 1 is formal and contains commencement and interpretation provisions.

Regulations 3 and 4 provide that applications are required and describe the age limits which

determine when applications can be made.

Regulations 5 to 7 set out entitlement rules. These are based on the amount and nature of

care, the persons to whom care can be provided and rules relating to receipt of social security

assistance and immigration status. Regulation 8 describes residence requirements.

Regulation 9 prescribes periods for making requests for redetermination of decisions on

applications and for responding to those requests.

Regulation 10 describes what is to happen where applications are made by more than one

person.

Regulation 11 prescribes a situation in which the Scottish Ministers are required to determine,

without receiving an application, that a person is entitled to a young carer grant. This is to be

done where a person being cared for receives a backdated award of a social security benefit,

that would have altered a previous determination had the award been made before that

determination was made, where certain conditions are met.

Part 4 sets out the amount of a young carer grant that is to be given to persons who qualify for

the grant.

A regulatory impact assessment has not been produced for this instrument as it has no impact

on the costs of business.

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ANNEX B

Draft scrutiny framework Please note: References are illustrative and are not intended to be comprehensive. They do not currently refer to specific commitments in the Social Security Charter, although these may be relevant and considered. For the purposes of this exercise we have drawn on the ‘PANEL’ approach to human rights’ assessment (Participation, Accountability, Non-Discrimination, Empowerment and Legality. See: http://www.scottishhumanrights.com/rights-in-practice/human-rights-based-approach/ ).

Overview

1) Are the regulations consistent with the Act, legally and in terms of the

policy intention behind the Act?

2) Are the regulations clear overall?

3) Are there particular human rights instruments that are likely to be

relevant?

4) What impact assessments have been done, e.g. on equality, poverty,

human rights? What do they tell us?

References: Principles: (b) social security is itself a human right and essential to the

realisation of other human rights

Human rights: Legal (PANEL)

Policy intention

Clarity

5) Has Scottish Government presented clear evidence about the issuethe policy seeks to address?

6) Is the policy objective of the regulations clear?

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7) Is the policy objective clearly consistent with the principles and withhuman rights?

8) Are there apparent inconsistencies or anomalies in the way the

regulations are drafted that do not reflect the policy objective,

principles or human rights?

Scope

9) Could the regulations reasonably have gone further in advancing thepolicy objective, principles and human rights?

References Human rights to progressive realisation

Policy development

10) Who has the Scottish Government involved and how accessibly?

The target client group

Seldom-heard and intersectional people from the target group

Other people directly affected

Representative stakeholder organisations

11) Has Scottish Government clearly set out what the client group and

others have told them about their needs, barriers and ideas for

solutions? To what extent do the regulations address the key

needs, barriers and ideas for solutions identified?

12) To what extent do stakeholders support the policy objectives and

draft regulations? Is there clear evidence of shared concerns? Has

Scottish Government addressed them? If not, is there a good case

for not addressing them?

13) Are there any major areas of disagreement between stakeholders?

What does SCoSS think about these areas and why?

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References Principles: (f) the Scottish social security system is to be designed with the

people of Scotland on the basis of evidence

Human rights to Participation, Empowerment (‘PANEL’)

Other: Equality Impact Assessment

Policy design Context

14) Have possible implications for other policy areas other than social

security been explored? This might include whether an increase in

social security payment could be offset by a reduction in another

form of support or just plug a gap in another form of support.

15) Are there issues around the interface with reserved benefits?

16) Are the regulations likely to increase or reduce the overall

complexity of the (devolved and reserved) social security

system? Is there scope to simplify? Is increased complexity

justifiable?

17) Are there any wider legal considerations? For example, is it

consistent with EU co-ordination rules, immigration rules, etc?

18) Do the policy objectives and draft regulations improve upon overall

(devolved and reserved) existing provision?

References Principles: (g) opportunities are to be sought to continuously improve the Scottish

social security system in ways which (i) put the needs of those who require

assistance first, and (ii) advance equality and non-discrimination; (h) the Scottish

social security system is to be efficient and deliver value for money.

Payment levels

19) How did Scottish Government establish the level of payment?

What evidence or other factors did it draw upon?

20) Is the level of payment adequate for the purpose and role (in view

of other types of support) intended for the benefit?

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21) Has any contribution towards reducing poverty appear been

explored?

References Principles: (a) social security is an investment in the people of Scotland; (b)

social security is itself a human right and essential to the realisation of otherhuman rights; (e) the Scottish social security system is to contribute toreducing poverty in Scotland

Human rights to adequate income, standard of living.

Eligibility

22) Do the eligibility criteria deliver on the policy objective, principles

and human rights?

23) Are the eligibility criteria fair? Do the eligibility criteria create

winners and losers? Is this unforeseen? Is it justified?

24) Are there any identifiable ambiguities or risks of unforeseen

consequences, for example in relation to fraud or take-up?

References Principles: (c) the delivery of social security is a public service; (d) respect for

the dignity of individuals is to be at the heart of the Scottish social securitysystem; (h) the Scottish social security system is to be efficient and delivervalue for money; (g) opportunities are to be sought to continuously improvethe Scottish social security system in ways which (i) put the needs of thosewho require assistance first, and (ii)advance equality and non-discrimination

Other: Equality Impact Assessment

Assessment process

25) Does the assessment process put the needs of those who require

assistance first?

26) How easy or difficult will it be to demonstrate eligibility?

27) Will it create direct or indirect disincentives? These might include

unnecessary hurdles, fear of loss of income, intrusion into privacy,

focusing on what people can’t do rather than what they could do

with the right support. Is this necessary? How could it be

mitigated?

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References Principles: (a) social security is an investment in the people of Scotland; (c)

the delivery of social security is a public service; (d) respect for the dignity ofindividuals is to be at the heart of the Scottish social security system; (h) theScottish social security system is to be efficient and deliver value for money;(g) opportunities are to be sought to continuously improve the Scottish socialsecurity system in ways which (i) put the needs of those who requireassistance first, and (ii) advance equality and non-discrimination.

Human rights to availability; Empowerment (PANEL)

Policy delivery

28) Do the regulations lend themselves to simple, efficient and cost-

effective administrative processes?

29) How will all eligible people, including seldom heard people, be

informed about their entitlement?

30) How will administrative procedures reasonably accommodate

different access requirements and preferences?

References: Principles: (c) the delivery of social security is a public service; (c) the delivery

of social security is a public service; (d) respect for the dignity of individuals isto be at the heart of the Scottish social security system; (h) the Scottish socialsecurity system is to be efficient and deliver value for money.

Human right to accessibility (all covered, particularly those most belonging tomost disadvantaged or marginal groups); availability.

Other: Duty to promote take-up; inclusive communications.

Policy impact and improvement Monitoring

31) What is in place to measure, monitor and enable adjustments? Inparticular, how will it measure:

Whether the needs of those who require assistance are put first

Whether it advances equality and non-discrimination

The impact it has had on the lives of people claiming it. What has itenabled them to do that they could not do before?

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32) Are there other particular issues that could usefully be monitored?

33) Who will be involved in monitoring and evaluation? Whose voices

will be heard, particularly those of the service users?

Sustainability

34) How could the policy objectives, and/or the regulations that deliver

them, be improved in future to advance the principles or human

rights?

Transparency and accountability

35) Are there measures in place for reporting, publicly, transparently

and inclusively, and for holding to account?

References Principles: (a) social security is an investment in the people of Scotland; (b)

social security is itself a human right and essential to the realisation of otherhuman rights; (c) the delivery of social security is a public service; (d) respectfor the dignity of individuals is to be at the heart of the Scottish social securitysystem; (e) the Scottish social security system is to contribute to reducingpoverty in Scotland; (f) the Scottish social security system is to be designedwith the people of Scotland on the basis of evidence (g) opportunities are tobe sought to continuously improve the Scottish social security system in wayswhich (i) put the needs of those who require assistance first, and (ii)advanceequality and non-discrimination; (b) social security is itself a human right andessential to the realisation of other human rights.

Human rights to ‘progressive realisation’; availability to future generations;Accountability (‘PANEL’)

Other: Equality Impact Assessment

Concluding questions

36) To what extent do the policy objectives and regulations overall

appear consistent with the social security principles and the

advancement of a human rights?

37) Have equality and diversity considerations (including

intersectionality) been embedded throughout each stage?

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38) From a first reading of draft regulations, are there unresolved

issues that SCoSS wishes to explore further, consult on, invite

Scottish Government officials or lawyers to provide information

about/explain, get independent legal or expert advice on, or

investigate/commission research on?

References Principles: (g) opportunities are to be sought to continuously improve the

Scottish social security system in ways which (i) put the needs of those whorequire assistance first, and (ii)advance equality and non-discrimination;

Human rights: Non-Discrimination and Equality (‘PANEL’)

Other: Equality Impact Assessment

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Social Security Committee

20th Meeting, 2019 (Session 5), Thursday 19 September 2019

Subordinate Legislation

Purpose

1. The following instrument, subject to the affirmative procedure, is for consideration

at today’s meeting. This Committee is the designated lead.

Carer’s Assistance (Young Carer Grants) (Scotland) Regulations 2019 (draft)

2. These draft regulations are the first to be scrutinised by the Scottish Commissionon Social Security (SCoSS). Dr Sally Witcher (Chair of SCoSS) will attend themeeting to speak to the Commission’s report and answer questions from theCommittee. The Commission’s report is provided in paper 2.

3. Following the evidence session with Dr Witcher, the Cabinet Secretary for SocialSecurity and Older People will move the motion to approve the affirmativeinstrument.

4. The letter from the Cabinet Secretary, Instrument and Policy Note are attached atAnnexe A. Further supporting documents are available using the links below:

Business and regulatory impact assessment

Equality impact assessment

Children's rights and wellbeing impact assessment

Island screening assessment

Policy overview

5. The Carer’s Assistance (Young Carer Grants) (Scotland) Regulations 2019provide a new type of payment (£300) to young carers aged 16,17 and 18 who donot receive carer’s allowance. To qualify, the claimant must care for someone ona qualifying disability benefit and provide an average of 16 hours of care weeklyover a 13-week period.

6. Further information is provided in the SPICe briefing (paper 1).

Delegated Powers and Law Reform Committee consideration

7. DPLR Committee considered the Carer’s Assistance (Young Carer Grants)

(Scotland) Regulations 2019 at its meeting on 3 September 2019 and did not

raise any issues.

For Decision

8. Is the Committee content to recommend approval of this instrument?

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Cabinet Secretary for Social Security and Older

People Shirley-Anne Somerville MSP

T: 0300 244 4000 E: scottish.ministers@gov.scot

Bob Doris MSP Social Security Committee The Scottish Parliament Edinburgh EH99 1SP

SocialSecurityCommittee@parliament.scot

21 June 2019

Dear Convenor,

Thank you for your recommendations on the Young Carer Grant (YCG) of 10 December 2018. I am now able to respond to your recommendations as I lay the regulations for YCG.

I am pleased to inform the Social Security Committee that I have received the first scrutiny report from the Scottish Commission on Social Security on the draft regulations of YCG. Please find attached my letter dated today to the Chair of the Commission, Dr Sally Witcher OBE and our response to the recommendations made by the Commission.

I also attach my letter dated today to Dr Jim McCormick, Chair of Disability & Carers Benefits Expert and our response the recommendations made by the group.

I welcome your recognition of YCG as a positive step. YCG is a completely new benefit to support young carers in Scotland who make an invaluable contribution to society. I am delighted to lay the regulations for YCG which will be one part of a wider package which will support young carers at a transitional time of their lives.

I am pleased to confirm that I have addressed the Committee’s recommendations as detailed in this letter.

Age of entitlement

The Committee asked the Scottish Government to review the age of entitlement and address the gap of young adult carers aged 18-25 who are not currently recognised.

Currently, we do not plan to extend the age criteria for YCG. Following recommendations from SCoSS, I have sought information on the implications of extending eligibility to those aged 19 to 25. Doing so would increase the caseload

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ANNEXE A

from 2,400 to approximately 9,700, increasing expenditure from 700,000 to approximately £3 million, in 2020/21.

The age limits for YCG were decided after extensive engagement with young carers and stakeholders who felt that the ages 16-18 represented a transitional period of a young person’s life in which young carers balance education, employment and their caring responsibilities.

The Committee noted the challenges of those with caring responsibilities aged 18 in full time education. Following the consultation, we have already extended the eligibility criteria to include all 16-18 year old young carers where as previously there was a requirement for 18 year olds to be in education.

The Committee also asked what more the Scottish Government is doing to support young carers. YCG is only one part of a wider package of support. Young carers aged 11-18 will receive non-cash benefits as part of the Young Scot National Entitlement Scheme. As of 2020/21, YCG recipients will have access to free bus travel subject to successful piloting. The Scottish Government values the contribution of young carers to society and the sacrifices that many of them make. YCG alongside the range of other benefits are aimed at enabling young carers to access and enjoy opportunities that many other young people have.

Multiple claimants

The Committee expressed the opinion that, where more than one person cares for the same individual for over 16 hours a week, or where the young person providing the care changes during the year, then all claimants should be entitled to the grant. The Committee also recommended that if someone cares for more than one person, and the combined total number of hours caring exceeds 16 hours, then that person should be entitled to the grant.

Only one person will be able to receive YCG per cared-for person. Additional verification checks would be required if multiple people could claim YCG for the same cared-for person. Therefore, to ensure the safe and secure delivery of the grant, we have taken this decision with the support of DACBEAG.

However, in line with the recommendations of DACBEAG, a young carer can receive YCG if they provide care to someone who is being cared for by someone else in receipt of Carer’s Allowance. We recognises the needs of people who require more than one carer. The eligibility criteria for YCG differs to that of Carer’s Allowance. Recognising the contribution of a young carer in these circumstances would not require additional verification checks.

The Scottish Government recognises that the total hours spent caring is what matters to young carers. Therefore young carers will be able to combine hours for up to three cared-for persons to reach the 16 hours required to be eligible for YCG. The impact of this will be monitored.

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Qualifying benefits

The Committee recommended that the Scottish Government look again at whether a young person, recognised as a young carer for support, should be considered for the awarding of the YCG. The Committee also agreed that it would be helpful if mechanisms were put in place to provide more support to young carers when the person they are caring for is not in receipt of a qualifying benefit.

Currently the cared-for person has to be normally paid a disability benefit for the young carer to be eligible for YCG. The Social Security (Scotland) Act 2018 requires any form of carer’s assistance to be framed so that eligibility depends on the carer having provided “regular and substantial care” to a person to whom a disability benefit is “normally payable”. This reflects the limits to our devolved competence to create carer’s benefits that are set out in the Scotland Act 2016.

The Scottish Government is committed to signposting to other services in cases where a young carer is not eligible for YCG. Further support will be offered to young carers aged 11-18 through the Young Scot National Entitlement Card.

Payment options

The Committee recommended that the Scottish Government considered providing the option of receiving the Young Carer Grant as a lump sum or in instalments. Although when introduced, YCG will be delivered as a lump sum payment, engagement with stakeholders and young carers following the launch of the Grant will provide us with opportunities to monitor the impact of this decision.

However, it should be noted that throughout the consultation and further engagement with young carers, a lump sum payment was popular as it gives recipients a wider range of options regarding expenditure.

Residency

I welcome the Committee’s support in seeking an exception to the ‘no recourse to public funds’ requirements for the Young Carer Grant, as it did so with the Best Start Grant. Despite the success of our conversations with the Home Office in relation to Best Start Grant, YCG is of a different scale and our expectation had been that the Home Office would seek to add it to the list of controlled funds.

Early Review

The Committee stated that it would welcome a commitment from the Government to review the YCG after one year. I can confirm that there will be ongoing monitoring and evaluation and a review of YCG will take place after one year. Stakeholder engagement will provide more opportunities to monitor the impact of the policy after it is launched. We are also developing a monitoring and evaluation framework in order to monitor the impact of the Young Carer Grant on the quality of life of young carers.

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Once again I would like to thank you for your recommendations. I hope this response reflects the extensive consideration we have given your contribution and the valuable input of the Committee in the development of this policy.

Yours sincerely,

SHIRLEY ANNE-SOMERVILLE

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21 June 2019

Dear Sally

Thank you for your letter of 17 May and accompanying report on the Young Carer Grant (YCG) draft regulations. The production of your first report is a significant and historical milestone and I greatly appreciate the work that has gone into this. Having considered the points and recommendations in your report, I am now in a position to respond as I will shortly be laying the YCG regulations.

I welcome the Commission’s overall view that YCG is a welcome and progressive policy consistent with the social security principles and the Scottish Government’s human rights obligations. As the Commission notes, YCG will be part of a wider package of support for young carers.

I am pleased to confirm that I have accepted the majority of the recommendations in the report. A table of responses to each recommendation is detailed at Annex A

Policy Intention

I welcome that the Commission recognises the value of YCG as a new benefit and our work to address the challenges faced by young people with caring responsibilities.

Policy Development

As the Commission notes, the Scottish Government has engaged with young carers and young carer organisations throughout the design of YCG. Engagement will continue through user testing up until the launch of YCG this Autumn.

Cabinet Secretary for Social Security and Older

People Shirley-Anne Somerville MSP

T: 0300 244 4000 E: scottish.ministers@gov.scot

Dr Sally Witcher OBE Scottish Commission on Social Security c/o Secretariat Victoria Quay Edinburgh EH6 6QQ

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The Commission’s report emphasises the need to engage with young carers with protected characteristics. Recommendation 1 invites the Scottish Government to provide information on any specific engagement undertaken with equalities groups, those from seldom-heard groups and cared-for people.

I have today published a number of Impact Assessments detailing the efforts taken to address the needs of young carers who have protected characteristics. An Equalities Impact Assessment sets out the Scottish Government’s work to promote economic equality through the Young Carer Grant and the steps taken to ensure it does not discriminate against those with protected characteristics. A Children’s Rights and Wellbeing Impact Assessment assesses the policy against the UN Convention on the Rights of the Child (UNCRC). We have also carried out an Island Communities Impact Assessment to understand how YCG can be tailored to those living in rural and remote communities. Scottish Government officials visited island communities to understand the challenges specific to young carers living in those communities.

Recommendation 2 suggests that the Scottish Government seek to improve its approach to engaging with a broader range of people directly affected by a proposed policy as a matter of priority. Specific engagement has been carried out with ethnic minority charities and Gypsy Traveller organisations. We are currently engaging with a British Sign Language (BSL) organisation to tailor the application form to specific needs. We will continue to reach out to groups that represent young carers with protected characteristics as I am aware that there can be a higher proportion of young carers in these groups that face specific barriers and challenges.

Policy content issues

Age of eligibility

I welcome the Commission’s response to our decision to amend the regulations so as to extend eligibility to all young carers aged 16-18, regardless of their educational status. Recommendation 3 suggests that the Scottish Government give consideration to extending eligibility to YCG to young adults over the age of 18 who are not eligible for Carer’s Allowance and invites the Scottish Government to provide costings for this.

Currently, we do not plan to extend the age criteria for YCG. I have sought information on the implications of extending eligibility to those aged 19 to 25. Doing so would increase the caseload from 2,400 to approximately 9,700, increasing expenditure from 700,000 to approximately £3 million, in 2020/21.

Qualifying benefits

Recommendation 4 invites the Scottish Government to reflect on how it might address the identified eligibility gap in relation to young people delivering care to people not in receipt of a qualifying benefit, and to comment on whether the devolution of disability benefits may provide a means to help achieve this.

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It is not currently anticipated that the entitlement criteria for Disability Assistance will significantly extend eligibility to new groups. Therefore it is not expected that the implementation of Disability Assistance would result in an increase of those eligible for YCG.

The eligibility criteria for all benefits will be clearly communicated and carefully marketed to ensure that there is no confusion when there are differences to who may be eligible. We will provide clear signposting to other financial and wider support services to young carers when someone comes into contact with social security Scotland.

Payment Levels

Recommendation 5 invites the Scottish Government to provide more clarity on the evidence base, and process undertaken, to identify £300 as an appropriate, adequate level of payment and to comment on the extent to which it believes the grant will deliver on its policy aims.

It was felt by many stakeholders and respondents to the consultation that £300 was an appropriate rate to recognise the contribution of young carers and to level the playing field between then and young adults who do not provide care. The YCG Working Group agreed that £300 was sufficient to make a significant difference to young carers. Concern was expressed by the YCG Working Group and in responses to the consultation that an amount significantly higher than £300 could result in pressure on the young carer to remain in a caring role or risk the professionalization of care.

Recommendation 6 invites the Scottish Government to comment on what it sees as the appropriate balance between different forms of support for young carers and how it will ensure that the value of YCG is not eroded by reductions or deficits elsewhere.

A Section 104 order has been requested from the UK Government which will prevent the grant being counted as income should the young carer apply for any reserved income related benefits. YCG will also not affect council tax reliefs.

YCG is one part of a wider package of support that we are introducing for young carers. Young carers aged between 11 and 18 will have access to non-cash benefits through the Young Scot National Entitlement Card. Recipients of YCG will be entitled to free bus travel subject to piloting from 2020/21.

We are continuing to explore further ways that we can support young carers. Results from the Skills Development Scotland evaluation of the Enhanced Apprenticeship Contribution model will be available this year which includes research into Young Adult Carers and Modern Apprenticeships.

Recommendation 7 invites the Scottish Government to provide more clarity on the extent to which it expects the YCG will do more than contribute towards the meeting of basic subsistence needs and whether this reflects the Scottish Government’s policy aims.

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There are a range of Scottish Government policies which aim to bring people, including carers and their families, out of poverty. Duties under the Carers Act require local authorities to establish information and advice services which must cover, amongst other things, income maximisation for carers.

We have been clear that the YCG is not intended to be used to meet basic subsistence needs or to provide an incentive to care. Although we have not placed any conditions on how the Grant must be spent, the intention is to help young people improve their quality of life and take part in opportunities that are the norm for other young adults.

Hours of Care

Recommendation 8 invites the Scottish Government to consider whether the rules relating to the qualifying period can be adapted to mitigate the risks that it could negatively impact people who care for those with fluctuating conditions and that it is insufficiently flexible to reflect the needs and circumstances of young people.

We recognise the varying and challenging circumstances of young carers as they often have to balance their caring responsibilities with education and employment. The regulations have therefore been re-drafted to reference that the care provided need only take place in 10 weeks out of the 13 week qualifying period. This addresses concerns raised by the Commission about breaks in care. It also provides flexibility for young carers to take respite and holidays.

Definition of Care

Recommendation 9 suggests that the Scottish Government abolishes the proposed definition of care in favour of a more flexible approach. I note the Commission’s view that the Scottish Government’s aim of providing greater clarity could be better achieved through improved guidance and targeted outreach activity.

In response to your recommendation, we have changed the definition of care in the regulations to read:

Care provided must –

Involve activity that promotes the physical, mental or emotional well-being of the person being cared-for.

This provides a flexible approach recommended by the Commission and, as suggested by the Commission, we intend to include user stories within the application and examples of what different types of care may look like in marketing materials and operational guidance.

Completely removing the definition of care would have an impact on the journey of the young carer and affect the operational delivery of the grant. Engagement with young carers has highlighted how young people often struggle to identify as a carer. If we were to remove the definition of care completely, young carers may find it harder to understand their eligibility for the grant.

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YCG will be paid on a non-discriminatory basis. The removal of the definition could create a difficult decision making process for the agency when delivering YCG with no definition to inform that decision. We do not wish to carry out pre-award verification checks which involves contacting the cared-for person in the same way that DWP do for Carer’s Allowance.

Valid Applications

Recommendation 10 the Scottish Government is invited to clarify what will constitute a valid claim, including evidence requirements, for YCG, taking account of the Commission’s view that the approach should be as flexible and accessible as possible.

Although the design process for YCG is ongoing, we aim to be as flexible and accessible as possible. We are working with young carers to understand what types of ID they are able to provide. We understand that young people may not have access to items that other forms of benefits require during the application.

Drafting Issues

References to “Invalid Care Allowance”

As suggested in Recommendation 11, the draft regulations have been updated to remove the reference to “Invalid Care Allowance”.

Possible Circularity

Recommendation 12 invites the Scottish Government to consider whether Regulation 7(1) could be phrased more clearly to avoid the risk of confusion about what counts as being “in receipt” of carer’s assistance.

We understand the need to be clear around what counts as being “in receipt” of Carer’s Assistance. In this respect, publicity material and guidance will clearly cover the eligibility criteria in a way that the regulations cannot. Removal of the current reference would create a need to amend the regulations when Scottish Carer’s Assistance starts to be provided instead of Carer’s Allowance. This will be evaluated following the launch of the grant to consider any evidence of confusion caused by the wording of the draft regulations.

Widening exceptions to one grant for each cared for person

Recommendation 13 invites the Scottish Government to consider whether the exception made in regulation 7(4)(b) could be broadened to encompass other circumstances than the death of the original YCG recipient, where caring responsibilities reasonably shift between young people.

We recognise the varying and often changing circumstances of carers and, in particular, young carers. However, through the user research which has been undertaken to date, we have not come across examples of transitional care, for

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example passing down the caring responsibilities from one sibling to another, so it is difficult to understand if this issue may occur. As we do not intend to verify the care is taking place for each application, we would be unable to verify that the care has stopped or that the care provider has changed.

Determination following backdated award of assistance

Recommendation 14 invites the Scottish Government to consider whether regulation 11 as drafted makes adequate provision for other circumstances in which it would be reasonable to expect that Scottish Ministers would award a Grant without application.

I welcome the Commission’s recognition of our attempts to reduce the burden on young carers during the application process. We understand that the circumstances of young carers may change over the course of an application. Therefore regulations have been re-drafted to reflect that Scottish Ministers will make a determination without receiving an application if an award of a qualifying disability benefit has been made to the person(s) being cared for which is a backdated award.

Payment in kind

Recommendation 15 invites the Scottish Government to consider whether the regulations could be strengthened to underline that the form YCG is given in is wholly the choice of young carers, invites the Scottish Government to comment on how it will ensure young carers are fully informed about this and to outline the options that can be offered, as shaped by the consultation.

This part of the YCG draft regulation replicates what was used for Best Start Grant to allow the option of the grant to be paid in a non-monetary form. This is not something we are considering for the launch of the grant later this year. Should we consider this option in the future, the young carer would have to agree that their payment can be made in a non-monetary form and can withdraw their consent at any time before the non-monetary payment is made. This requirement is in the Social Security (Scotland) Act.

This would be set out in any communications, marketing material and operational guidance if and when this option becomes available.

Multiple definitions of “regular and substantial” care

Recommendation 16 invites the Scottish Government to clarify whether Schedule 2 of the Social Security (Scotland) Act 2018 leaves scope for different definitions of “regular and substantial care” to appear in different sets of regulations. If so, the Scottish Government is invited to offer a view on whether this risks inconsistency, complexity and confusion.

The powers the Scottish Government has allow us to create Carer’s Assistance only in cases where there is regular and substantial provision of care. This means that no assistance can be provided unless the care is regular and substantial. That may mean that there are different qualifying rules for different forms of Carer’s Assistance. For example, YCG will have different eligibility rules from Carer’s

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Assistance with one being paid in the form of a grant and the other an income replacement benefit.

The eligibility criteria for all benefits will be clearly communicated and carefully marketed to ensure that there is no confusion when there are differences to who may be eligible.

Policy impact and improvementRecommendation 17 suggests a number of specific areas for the Scottish Government to monitor, evaluate or research.

Meeting the policy intent

Recommendation 17a, and 17b relates to monitoring the impact of YCG on the lives of young carers and the monitoring of whether the policy objectives have been met. The Scottish Government is developing a monitoring and evaluation framework to monitor the impact of YCG on the quality of life of young carers. On-going stakeholder engagement will provide the Scottish Government with further opportunities to refine our approach in monitoring the impact of YCG.

Payment Level

Recommendaion 17c relates to the sum of £300. As set out in my previous responses, the £300 grant will be part of a wider package of support and is not intended to meet subsistence levels. Recommendation 17d relates to monitoring whether YCG contributes to a reduction in poverty. We intend to examine some of the intermediate impacts on young carers that may lead to improved financial outcomes. Attributing trends to YCG presents challenges both to the small sample size of those who receive YCG and to the wide range of factors that determine poverty. However we have taken steps through our research and presented our work to address these concerns in an Equalities Impact Assessment to ensure that YCG promotes economic equality.

Qualifying Period

Recommendation 17e is regarding the monitoring of the qualifying period. As I stated in my response to Recommendation 8, the regulations have been re-drafted to reflect that care need only take place in 10 out of the 13 week qualifying period to allow for respite and breaks in care.

Definition of Care

Recommendation 17f asks the Scottish Government to evaluate the impact of any new definition. We intend to engage with analysts in order to consider the best way of testing the revised definition. Stakeholder engagement beyond the launch of the grant will help us monitor the impact of the definition of care.

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Equality and Diversity

Recommendation 17g and 17h asks the Scottish Government to gather evidence on young carers with protected characteristics and specifically on young women. Currently this information is collected by means of an optional equalities monitoring questionnaire.

I agree with your recommendation to gather evidence of the impact of YCG on young women in particular in principle. However, in the short term we do not have programme capacity to include this additional data in the application form. In the longer term, we can look again how to improve data gathering, but user research to date has shown that participants have regularly highlighted their concern at being asked what they deem to be ‘unnecessary’ questions for awarding the benefit for which they are applying. Without further user engagement and consultation it may also raise issues in providing a seamless user journey and our ability to build a service based on co-design, dignity and respect. Questions of this type are within the bounds of GDPR and require adequate measures to ensure data security.

Recommendation 17i asks the Scottish Government to monitor the impact, should people subject to immigration control be granted exemption. We have engaged with individuals subject to immigration control and will continue this engagement should they be granted an exemption with regards to YCG.

Valid Claims

Recommendation 17J asks the Scottish Government to monitor the impact of the operational approach to determining what should constitute a valid claim. As with definitions of care, we, or the agency, can, if requested explore the likelihood of a decision on the threshold for validity through a variety of channels.

Future implications

Recommendation 17k asks the Scottish Government to consider whether the eligibility rules for devolved disability benefits, once decided, have implications for the eligibility and the impact of YCG. As I stated in my answer to Recommendation3, we do not intend to widen eligibility.

Recommendation 17l asks the Scottish Government to consider the interface of YCG when developing Carers Assistance to prevent or remedy undesirable inconsistencies or complexity. I agree that the interface of YCG should be clear and consistent. We will engage with analysts to consider the best way to test proposals for Carer’s Assistance, for example through existing User Research or Experience Panels.

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Once again, I thank you for the open manner in which you have conducted your report and issued your recommendations on the draft regulations of YCG. I trust that this reassures you of the extensive consideration we have given to your recommendations and the valuable input you have made to the development of this policy.

Yours sincerely

Shirley Anne-Somerville

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Annex ASCoSS recommendation Accept/Partially

accept/DeclineSG Response

1. The Commission invites the ScottishGovernment to provide information on anyspecific engagement or consultation undertakenwith equalities groups, those from seldom-heardgroups and cared-for people.

Yes During Discovery we have spoken to seldom heard groups including Gypsy Travellers, those living in more rural areas and the cared for person alongside the young carer. We have also reached out to other ethnic minority charities as we are aware there will be a higher proportion of young carers in these groups. We have spoken to charities that support young carers who are going through a ‘transition’ phase as they could no longer attend school due to their caring responsibilities, and we have also arranged both research and testing with a charity who supports young carers in an armed forces family.

We are engaging with a BSL charity and intend to test the application form with those that use BSL to make sure the language works for them.

2. In the event that there was no specificengagement or consultation undertaken byScottish Government with equalities groups,those from seldom heard groups and cared-forpeople on this occasion, the Commissionrecommends that it seeks to improve itsapproach to engaging with a broader range ofpeople directly affected by a proposed policy asa matter of priority.

Yes As mentioned above, user research is well underway and will continue through the Beta phase, right up until the Young Carer Grant launches this autumn.

3. The Commission recommends that theScottish Government give consideration to thecase for extending eligibility, now or in the

No Currently, we do not plan to extend the age criteria for YCG.

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future, to young adults over the age of 18 not eligible for Carer’s Allowance and invites Scottish Government to provide information on projected costs.

We have sought information on the implications of extending eligibility to those aged 19 to 25. Doing so would increase the caseload from 2,400 to approximately 9,700, increasing expenditure from 700,000 to approximately £3 million, in 2020/21.

4. The Commission invites the ScottishGovernment to reflect on how it might addressthe identified eligibility gap in relation to youngpeople delivering care to people not in receipt ofa qualifying benefit, and to comment on whetherthe devolution of disability benefits may providea means to help achieve this.

No Although entitlement criteria may diverge from current rules when disability benefits are devolved, it is not currently anticipated that the entitlement criteria for Disability Assistance will significantly extend eligibility to new groups of individuals. For this reason it is not expected that the implementation of Disability Assistance would widen the number of people who, as a result of caring for someone normally paid a disability benefit, will be eligible for the Young Carer Grant.

5. The Scottish Government is invited to providemore clarity on the evidence base, and processundertaken, to identify £300 as an appropriate,adequate level of payment; and to comment onthe extent to which it believes the grant willdeliver on its policy aims.

Yes The suggestion of £300 per year was initially used as a point for discussion with stakeholders. Those discussions demonstrated that this amount was considered to provide enough support to make a significant difference to young carers; for example, to allow for purchase of some forms of short break or allow them to take part in leisure activities that they may not otherwise afford if their household income is low due to disability of a family member. The level is similar to comparable grants, such as the Time to Live fund.

Specifically, the YCG Working Group felt that £300 was at a level which would be sufficient to make a difference to the young carer, for example to fund a short break or driving lessons, whilst being low enough to avoid pressure on the young carer to take on or remain in a caring role, providing sufficient safeguards were in place.

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Our response at Recommendation 17c details how we propose to monitor the extent to which the value of grant meets the policy aims.

6. The Scottish Government is invited tocomment on what it sees as the appropriatebalance between different forms of support foryoung carers and how it will ensure that thevalue of YCG is not eroded by reductions ordeficits elsewhere.

Yes A Section 104 order has been requested from the UK

Government which will prevent the grant being counted as

income should the young person apply for any reserved

income related benefits. An SSI will be progressed to amend

the income and capital rules for council tax reduction, so that

the grant does not affect council tax reliefs.

The grant is just part of the new package of support which is being introduced for young carers.

Young Carers aged 11-18 will be able to access the non-cash benefits available through the Young Scot National Entitlement Card.

Recipients of the grant will also be entitled to free bus travel from 2020/21.

In addition to this, Skills Development Scotland (SDS)

commissioned the Young Adult Carers and Modern

Apprenticeships Research paper in 2018 to explore the

potential to expand the enhanced contribution rates to

include young carers.

The findings of this research will be considered as part of a

wider SDS evaluation of the Enhanced Apprenticeship

Contribution model, the results of this evaluation are

expected to be available in June 2019.

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7. The Scottish Government is invited to providemore clarity on the extent to which it expects theYCG will do more than contribute towards themeeting of basic subsistence needs andwhether this reflects the Scottish Government’spolicy aims.

Yes We have been clear that the Young Carer Grant is not intended to be used to meet basic subsistence needs.

However, there are a range of Scottish Government policies which aim to bring people, including carers and their families, out of poverty. Duties under the Carers Act require local authorities to establish information and advice services which must cover, amongst other things, income maximisation for carers. Other support may include income replacement benefits and employment support initiatives.

Although we have not placed any conditions on how the Grant must be spent, the intention is to help young people improve their quality of life and take part in opportunities that are the norm for other young adults.

This may include, for example, being able to take part in social or leisure activities or support to study.

8. The Commission invites the ScottishGovernment to consider whether the rulesrelating to the qualifying period can be adaptedto mitigate the risks that it could negativelyimpact people who care for those withfluctuating conditions and that it is insufficientlyflexible to reflect the needs and circumstancesof young people.

Yes The regulations have been re-drafted to reference that the care provided need only take place in 10 weeks out of the 13 week qualifying period.

This addresses the concerns about breaks in care and also provides flexibility for respite and holidays.

9. The Commission recommends that theScottish Government abolishes the proposeddefinition of care in favour of a more flexible

Partially Accept In response to your recommendation, we have changed the definition of care in the regulations to: “Care provided must –

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approach. The Commission’s view is that the Scottish Government’s welcome aim of providing greater clarity could be better achieved through improved guidance and targeted outreach activity.

Involve activity that promotes the physical, mental or emotional well-being of the person being cared-for.”

This provides a flexible approach recommended by the Commission.

Supporting guidance and marketing material will include examples of different caring circumstances including physical, psychological and emotional care. This would allow a flexible approach to defining care for the purposes of the application whilst offering guidance to encourage the self-identification of young carers.

10. The Scottish Government is invited to clarifywhat will constitute a valid claim, includingevidence requirements, for the YCG; takingaccount of the Commission’s view that theapproach should be as flexible and accessibleas possible.

Yes The design of YCG is not yet finalised, however, our aim is to be as flexible and accessible as possible. There are outstanding questions surrounding things like the Identification & Verification process and we are working with young carers to understand what forms of ID they may be able to provide – understanding that they may not have access to the items on our standard list. Once this is finalised, we will be able to confirm what constitutes a valid application.

11. The Scottish Government should check withDWP that the term “Invalid Care Allowance” isobsolete and, if so, consider removing referenceto it from the draft regulations.

Yes The draft regulations have been updated to remove the reference to “Invalid Care Allowance”.

12. The Scottish Government is invited toconsider whether Regulation 7(1) could bephrased more clearly to avoid risk of confusion

No Publicity material will clearly cover the eligibility criteria in a way that the regulations cannot. Removal of the current reference would create a need to amend the regulations when Scottish Carer’s Assistance starts to be provided

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about what counts as being “in receipt” of carer’s assistance.

instead of Carer’s Allowance. We will evaluate our approach following the launch of the grant and can consider amending the regulations if there is evidence to suggest they are causing confusion.

13. The Scottish Government is invited toconsider whether the exception made inregulation 7(4)(b) could be broadened toencompass other circumstances than the deathof the original YCG recipient, where caringresponsibilities reasonably shift between youngpeople.

No Through the user research which has been undertaken to date, we have not found evidence to suggest that transitional care exists, for example passing down the caring responsibilities from one sibling to another.

Operationally, as we do not intend to verify the care is taking place for each application, we would be unable to verify that the care has stopped/care provider has changed.

14. The Scottish Government is invited toconsider whether regulation 11 as draftedmakes adequate provision for othercircumstances in which it would be reasonableto expect that Scottish Ministers would award aGrant without application.

Yes The regulations have been re-drafted to reflect that Scottish Ministers will make a determination without receiving an application if an award of a qualifying disability benefit has been made to the person(s) being cared for which is a backdated award.

15. The Commission invites the ScottishGovernment to consider whether the regulationscould be strengthened to underline that the formYCG is given in is wholly the choice of youngcarers, and invites Scottish Government tocomment on how it will ensure young carers arefully informed about this and to outline theoptions that can be offered, as shaped by theconsultation.

No This part of the YCG regulations replicates what was used for Best Start Grant to allow the option of the grant to be paid in a non-monetary form. This is not something we are considering for the launch of the grant later this year, but may consider this option in the future.

Should this become an option, the client would have to agree that their payment can be made in a non-monetary form and can withdraw their consent at any time before the non-monetary payment is made.

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This would be set out in any communications, marketing material and operational guidance if and when this option becomes available. This requirement is in the Social Security (Scotland) Act.

16. The Scottish Government is invited to clarifywhether Schedule 2 of the Social Security(Scotland) Act 2018 leaves scope for differentdefinitions of “regular and substantial care” toappear in different sets of regulations. If so, theScottish Government is invited to offer a view onwhether this risks inconsistency, complexity andconfusion.

Yes The powers the Scottish Government has allow us to create Carer’s Assistance only in cases where there is regular and substantial provision of care. This doesn’t mean the same definition must be used for what care is provided, in all situations in which assistance is provided. However it does mean that no assistance can be provided unless the care is regular and substantial. That may mean that there are different qualifying rules for different forms of Carer’s Assistance. For example, YCG will have different eligibility rules from Carer’s Assistance with one being paid in the form of a grant and the other an income replacement benefit.

The eligibility criteria for all benefits will be clearly communicated and carefully marketed to ensure that there is no confusion when there are differences to who may be eligible.

17. Building on the analysis andrecommendations offered throughout this report,the Commission recommends that the ScottishGovernment monitors, evaluates or researches:

a) The real world use and impact of theGrant and the extent of the positivedifference YCG has made to youngcarers’ lives

Partially Accept a & b) We are intending to evaluate the impact of YCG by conducting primary research with young people in receipt of YCG to establish what their perspective on the impact of the benefit has been on their quality of life. This may be enhanced by access to better data on their background and outcomes (see below), but we will at least have some insight into those questions.

c) Depending on the evaluation above, we should have anidea whether this is considered by a group of young carers

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b) The extent to which this suggests that thepolicy aims have been fulfilled. If thepolicy aims have not been fulfilled, whatfactors have prevented this?

c) The extent to which the £300 grant ismeeting the Scottish Government’sambitious policy aims and whether theevidence suggests this sum should berevisited.

d) The extent to which the Grant contributedto a reduction in poverty for the peoplewho receive it.

e) If the Scottish Government does notrethink the qualifying period, whetherthere is evidence of an impact on take-up, including among specific groups ofyoung carers.

f) If the Scottish Government does notfollow the Commission’s recommendationon reverting to a broader definition ofcare, it should seek to evaluate theimpact of the new definition.

g) Gather evidence of varying take-up orwider impact on young carers withprotected characteristics, intersectionalcharacteristics or those belonging toseldom heard groups.

to have made a difference to their quality of life, or whether they believe it essentially had no difference. What we won’t be able to do is examine the exact difference in their lives before and after, or quantify exactly what the amount should have been. However, this will be part of the evidence base which policymakers will consider in the normal course of the events. As noted at Recommendation 7, YCG is not intended to meet subsistence levels, or provide an incentive to undertake caring activity.

d) We intend to be able to examine some of the intermediateimpacts on young carer’s that may lead to an improvedfinancial outcome. Measuring the poverty outcomes for 16-18 year olds does present challenges because of smallsample sizes. Attributing any trends to YCG presents afurther difficulty because of the wide range of factors thatdetermine poverty.

e) As set out at Recommendation 8, the regulations havebeen re-drafted to reflect care need only take place in 10 outof the 13 weeks qualifying period.

f) We intend to engage with analysts to consider the bestway to test the revised definition, for example throughexisting User Research, Experience Panels or a one-offstudy. Estimating take-up will be difficult however, as all theissues around identifying the eligible population, and theapplicability of their caring activity apply.

g) Currently this information is collected by means of anoptional equalities monitoring questionnaire. However,considering the optional nature of the survey and the size of

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h) Gather evidence of the impact of theYCG on young women in particular

i) Monitor the impact, should people subjectto immigration control be grantedexemption.

j) To monitor the impact of the operationalapproach to determining what should constitute a valid claim e.g. is this encouraging or restricting applications.

k) Consider whether the eligibility rules fordevolved disability benefits, once decided, have implications for the eligibility and impact of YCG.

l) Consider the interface of YCG whendeveloping Carers Assistance to prevent or remedy undesirable inconsistencies or

complexity.

the Young Carer Grant user base (circa 2400) it is unlikely that this will attract meaningful responses in adequate numbers for smaller equality groups. This also means that any meaningful analysis of differences between groups or over time is highly vulnerable to statistical error and non-response bias. In addition any groups of BME, LGBT or trans carers will negligible, and this will be exacerbated for groups in more than one category (intersectional characteristics).

To date the response rate to the optional monitoring questionnaire for existing benefits is too small to provide a meaningful conclusion if applied to YCG, it is highly unlikely that existing methods for collecting equalities data will be adequate.

Our dilemma however is that in the short term we do not have programme capacity to include this additional data in the application form. In the longer term, we can look again how to improve data gathering, but user research to date has shown that participants have regularly highlighted their concern at being asked what they deem to be ‘unnecessary’ questions for awarding the benefit for which they are applying. Without further user engagement and consultation it may also raise issues in providing a seamless user journey and our ability to build a service based on co-design, dignity and respect. You are aware that the balance between following people’s wishes and collecting equality data has previously been a point of contention in relation to the Experience Panels. Questions of this type are within the bounds of GDPR and require adequate measures to ensure data security

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h) Programme is currently reviewing the requirement to askgender for all applications for reporting purposes. Howeveras above this has similar implications as collecting protectedcharacteristics information. This is a sensitive area and, assuch, a significant amount of user research and testingneeds to take place to ensure that any implementation ofthis question recognises and respects the needs of the userin relation to the needs of the Scottish Government. As partof this review of the requirement, in addition to end usersand business needs, the programme also needs to considerthe interests of wider stakeholders and how this informationis used. This work is progressing and it is not anticipatedthat this information will be collected as part of the YoungCarer Grant application form at the launch of the benefit.

i) This will require identification of people in this group, eitherthrough direct question in the application or linkage withnecessary data held by DWP/HMRC (presumably nationalinsurance numbers). Failure to collect information to identifythis group will make monitoring difficult, and again numbersin this category are already likely to be small for analyticalpurposes. Currently it is unlikely that we will be able tocapture data on immigration status, as per the limitations ofcollecting the wider characteristics data set out above, andwith the size of the client base it is unlikely that this wouldprovide a statistically meaningful response.

j) As with definitions of care, we, or the agency, can, ifrequested explore the likelihood of a decision on thethreshold for validity through a variety of channels. Theissues about estimating take-up nonetheless all apply.

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k) we don’t have an intention to widen eligibility. We wouldhave to consider the impact on YCG claims if this arose.

l) We will engage with analysts to consider the best way totest proposals for Carer’s Assistance, for example throughexisting User Research, Experience Panels or a one-offstudy

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Cabinet Secretary for Social Security and Older

People Shirley-Anne Somerville MSP

T: 0300 244 4000 E: scottish.ministers@gov.scot

Dr Jim McCormick Chair of Disability & Carers Benefits Expert Advisory Group C/o Scottish Government

21 June 2019

Dear Dr McCormick,

Thank you for your letter and accompanying report on the Young Carer Grant (YCG) draft regulations on 10 December 2018. Now that the consultation and scrutiny carried out by Scottish Commission on Social Security (SCoSS) has concluded, I am in a position to respond to your report as I will shortly be laying the YCG regulations.

I welcome the recommendations made by the Disability and Carers Expert Advisory Group (DACBEAG) in the report and I am pleased to confirm that I have accepted almost all of these.

It should be noted that a number of changes have been made to the draft regulations in response to the consultation and engagement with stakeholders and young carers since the DACBEAG issued their report.

Eligibility

The Group made a number of comments on the eligibility criteria for YCG specifically on the issues of multiple applications and eligibility gaps.

The Group commented that a young carer should be eligible for YCG when another carer gets Carer’s Allowance for the same cared-for person. The intent of YCG is to recognise the care provided by young people in a variety of situations. We therefore now intend to pay YCG to a young person providing care to someone with another carer who receives Carer’s Allowance as suggested by Recommendation 1.

In line with Recommendation 2, young carers will be allowed to combine hours caring for up to three people to reach the 16 hour per week threshold. The Scottish Government recognises that the total hours spent caring is what matters to young carers. The impact of this will be monitored.

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The group commented that the eligibility criteria excluded young carers aged 18 who are not at school but who are at a pivotal transition period in their lives. This concern was also reflected in wider engagement with stakeholders and in the consultation. The policy has therefore been updated to widen eligibility to include all young carers between the ages of 16-18. There is no stipulation that they have to be in education to receive the grant. We therefore accept Recommendation 3.

Application process

The report emphaises the need for a straightforward application process that does not place an unnecessary burden on young people. This is expressed in Recommendation 4. The Scottish Government is carrying out extensive user testing

to ensure that the application process is concise, light-touch and easy to understand.

The application form will be made available in multiple formats including an easy read version in order to address a range of needs.

Recommendation 5 suggests changing the definition of care as defined in the draft regulations to allow a more flexible definition of care. We recognise the need for any definition to capture a wide range of caring situations. Therefore we have altered the definition of care to make it less prescriptive.

However, we also recognise that young carers often do not self-identify as carers. Taking out the definition completely would risk removing an important tool for young people with caring responsibilities to identify as a young carer and understand that they are eligible for YCG.

Removing completely a definition of care would also turn the award of YCG into a decision making process rather than a discretionary benefit as it is intended at the moment. Agency staff would have to make a case by case decision on what constitutes care for each application without a standard definition to refer to. A flexible definition keeps the decision process consistent and helps young carers identify that they may be eligible for YCG.

The report advises monitoring whether a 31-day timeframe to request a re-determination is sufficient and whether there are particular impacts on different protected groups. We recognise that young people with no prior engagement with the benefits system may need more support with the process. We accept Recommendation 6 and will monitor whether the 31 calendar day time limit for requesting a re-determination is sufficient following the launch of the grant.

Promotion and take-up/ signposting

The report highlights the need for targeted promotion to reach young carers from marginalised or under-represented groups. We accept Recommendation 7 to

promote YCG to under-represented groups and to promote take up of other relevant support, including support services.

We have spoken to seldom heard groups including Gypsy Travellers, those living in more rural areas and the cared for person alongside the young carer. We have also

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reached out to other ethnic minority charities as we are aware there will be a higher proportion of young carers in these groups who face specific barriers and challenges.

We have spoken to a range of charities that support young carers who can no longer attend school due to their caring responsibilities. We have also arranged both research and testing with a charity who supports young carers in an armed forces family and are engaging with a BSL charity and intend to test the application form with those that use BSL to make sure the language works for them.

The eligibility criteria for all benefits will be clearly communicated and carefully marketed to ensure that there is no confusion when there are differences to who may be eligible. We will provide clear signposting to other financial and wider support services to young carers when someone comes into contact with social security Scotland.

The design of YCG has been carried out in collaboration with young carers. We are committed to further user testing and user research in order to tailor promotional materials to young carers with protected characteristics supported by evidence gathered through the Equalities Impact Assessment.

I am aware that you have been directly in touch with my officials regarding equalities issues. I have encouraged them to meet with you now that the I have responded to your report and published the Equalities Impact Assessment.

Administering YCG

The report recommends that flexible payment arrangements are offered to young carers. We accept Recommendation 8 which recognises the needs of young carers without bank accounts.

YCG will be provided as a bank transfer payment as standard but we recognise that some young carers may not have a bank account. Therefore we will offer alternative payment methods through i-movo (in line with Agency wide policy) and we can also pay into a Credit Union account.

The report expresses concern over how best to support marginalised and disadvantaged groups. The Scottish Government has carried out an Islands Community Impact Assessment in order to understand how rural and remote communities will interact with YCG and a Children’s Rights and Wellbeing Impact Assessment that assess YCG against the United Nations Convention on the Rights of the Child (UNCRC). The design of YCG has been carried out in collaboration with young carers.

The Scottish Government is carrying out a range of user research and testing to ensure that the application process is as simple as possible. This process will be guided by feedback from young carers.

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Safeguarding

The Scottish Government has carried out four impact assessments in total: an Equalities Impact Assessment; a Business and Regulatory Impact Assessmnet; a Children’s Rights and Wellbeing Impact Assessment; and a Island Communities Imapct Assessmnet.

The Scottish Government is committed to signposting to other support services. We recognise that mental health conditions are more prevalent among young carers in comparison to young people without caring responsibilities1. One of the aims of the YCG is to improve mental and physical health outcomes of young carers.

The report expresses concerns about the potential for incentivising care for young people. It was felt by many stakeholders and respondents to the consultation that £300 was an appropriate rate to recognise the contribution of young carers and to level the playing field between them and young adults who do not provide care.

YCG allows young carers to continue to care if they wish to but also to have a life alongside caring. It aims to improve health and education outcomes for young carers and remove some barriers to pursuing opportunities. The impacts of YCG on young carers will be monitored by the Scottish Government.

I trust that this reassures you of the extensive consideration we have given our recommendations and the valuable input you have made to the development of this policy.

Yours sincerely,

SHIRLEY ANNE-SOMERVILLE

1 Scotland’s Census, 2011

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Draft Regulations laid before the Scottish Parliament under section 96(2) of the Social Security

(Scotland) Act 2018 for approval by resolution of the Scottish Parliament.

D R A F T S C O T T I S H S T A T U T O R Y I N S T R U M E N T S

2019 No.

SOCIAL SECURITY

The Carer’s Assistance (Young Carer Grants) (Scotland)

Regulations 2019

Made - - - - 2019

Coming into force in accordance with regulation 1

CONTENTS

PART 1

Introductory and interpretation

1. Citation and commencement

2. Interpretation

PART 2

Eligibility

3. Overview

4. Making of applications

5. Conditions relating to the care being provided

6. Conditions relating to the person or persons being cared for

7. Further eligibility conditions

8. Conditions relating to residence

PART 3

Procedural matters

9. Periods for redetermination requests

10. Multiple applications involving care of the same person

11. Determination following backdated award of assistance

PART 4

Assistance to be given

12. Amount and form of young carer grants

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The Scottish Ministers make the following Regulations in exercise of the powers conferred by

sections 28, 41(4)(a), 43(5) and 52 of the Social Security (Scotland) Act 2018(a) and all other

powers enabling them to do so.

In accordance with section 96(2) of that Act, a draft of this instrument has been laid before and

approved by resolution of the Scottish Parliament.

In accordance with section 97(2) of that Act, the Scottish Ministers have consulted the Scottish

Commission on Social Security.

PART 1

Introductory and interpretation

Citation and commencement

1. These Regulations may be cited as the Carer’s Assistance (Young Carer Grants) (Scotland)

Regulations 2019 and come into force on the first Monday after the day on which they are made.

Interpretation

2. In these Regulations—

“applicant” means a person who has applied for a young carer grant,

“determination” means a determination of an individual’s entitlement under section 37 of the

Social Security (Scotland) Act 2018,

“the qualifying period” means the period of 13 weeks described in regulation 5(1),

“young carer grant” means the grant provided for by these Regulations.

PART 2

Eligibility

Overview

3.—(1) A person who applies for a young carer grant is entitled to receive it if that person meets

the conditions prescribed in these Regulations.

(2) Regulation 4 provides for the making of applications, including providing conditions related

to the age of the applicant.

(3) Regulation 5 provides conditions relating to the care being provided and regulation 6

provides conditions relating to the person or persons being cared for.

(4) Regulation 7 provides further conditions relating to receipt of assistance and the status of the

applicant.

(5) Regulation 8 provides conditions relating to the applicant’s residence.

(6) Part 3 provides timescales for some procedural matters, including situations that involve

multiple applications relating to care of the same person, and provides for when the Scottish

Ministers must determine that an individual is entitled to a young carer grant without an

application.

(a) 2018 asp 9. The powers to make these Regulations are exercised together by virtue of section 33(2) of the Interpretation

and Legislative Reform (Scotland) Act 2010 (asp 10). These Regulations are subject to the affirmative procedure by virtue of section 33(3) of that Act.

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(7) Regulation 12 makes provision about the assistance that an applicant is entitled to receive.

Making of applications

4.—(1) A person is entitled to a young carer grant if, on the day their application for that

assistance is made, they are aged at least 16 and are under the age of 19.

(2) In a non-leap year, the birthday of a person born on 29 February is to be taken to be 28

February.

(3) An application is to be treated as made on the day it is received by the Scottish Ministers.

(4) In a case where, by virtue of a regulation 11, a determination is to be, or has been, made

without an application, references in these Regulations to the day the application is made are to be

read in accordance with paragraph (3) of that regulation.

(5) For the avoidance of doubt, a thing that purports to be an application is not an application

unless it is—

(a) made in the form, and

(b) accompanied by the evidence,

required by the Scottish Ministers under section 38(1) of the Social Security (Scotland) Act 2018.

(6) For the purposes of determining assistance, the period of an application is the period of 13

weeks ending with the day before the day of the application for a grant and an application in

respect of any other period of 13 weeks is to be regarded as an application for a different period,

despite any overlap between the two periods.

Conditions relating to the care being provided

5.—(1) To qualify for a young carer grant the applicant must have provided care, over the period

of 13 weeks ending with the day before the day on which their application for a grant is made

(“the qualifying period”)—

(a) to a person or persons described in regulation 6,

(b) for the number of hours, and in the number of weeks, described in paragraph (2),

(c) as described in paragraph (3), and

(d) which was not provided in the manner described in paragraph (4).

(2) The care must have been provided—

(a) for at least 208 hours during the qualifying period, and

(b) in at least 10 weeks during that period.

(3) The care provided must involve activity that promotes the physical, mental or emotional

well-being of the person being cared for.

(4) The care must not have been provided by the applicant—

(a) under or by virtue of a contract, unless the contract is of a kind specified by regulations

under section 1(3)(a) of the Carers (Scotland) Act 2016(a) as not to be regarded as a

contract for the purposes of that Act, or

(b) as voluntary work.

Conditions relating to the person or persons being cared for

6.—(1) To qualify for a young carer grant the person or persons being cared for must,

throughout the qualifying period and on the day the application for assistance is made, each be a

person to whom a qualifying disability benefit is normally payable.

(2) An applicant may combine hours caring for up to three persons during the qualifying period.

(a) 2016 asp 9.

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(3) In paragraph (1), “qualifying disability benefit” means a disability benefit, or where

applicable a component of a disability benefit, which is of a type, and being paid at a rate, that

would entitle a person who cares for the recipient of that benefit and who meets the relevant

qualifying conditions to—

(a) carer’s assistance, payable under section 28 of the Social Security (Scotland) Act 2018, or

(b) carer’s allowance, payable under section 70 of the Social Security Contributions and

Benefits Act 1992(a) or section 70 of the Social Security Contributions and Benefits

(Northern Ireland) Act 1992(b).

Further eligibility conditions

7.—(1) An applicant is not entitled to a young carer grant if, on the day their application is

made, the applicant is in receipt of a benefit named in regulation 6(3)(a) or (b) in respect of any of

the persons being cared for.

(2) An applicant is not entitled to a young carer grant if they have applied for a benefit named in

regulation 6(3)(a) or (b) in respect of a period that includes the day their application is made,

unless it has already been determined that the applicant is ineligible for that benefit in respect of

that day.

(3) An applicant is not entitled to a young carer grant if they have previously received a young

carer grant, unless the day their application is made is at least one year after the day of the

application in respect of which that grant was paid.

(4) Paragraph (5) applies if—

(a) any other person has been paid a young carer grant in respect of care of any of the

persons being cared for in an application for a young carer grant, and

(b) that grant was paid as a result of an application made during the year immediately

preceding the day the applicant makes his or her application.

(5) The applicant is not entitled to a young carer grant unless—

(a) the other person who was paid a young carer grant has died, or

(b) the Scottish Ministers have concluded that a young carer grant should not have been paid

to the other person.

(6) If an applicant has already received three young carer grants, they are not entitled to a further

young carer grant.

(7) An applicant is not entitled to a young carer grant if, on the day their application is made,

they are subject to immigration control within the meaning of section 115(9) of the Immigration

and Asylum Act 1999(c), unless the applicant falls within a category or description of persons

specified in Part 2 of the schedule of the Social Security (Immigration and Asylum) Consequential

Amendments Regulations 2000 (persons not excluded under section 115 of the Immigration and

Asylum Act 1999 from entitlement to various social security benefits)(d).

Conditions relating to residence

8.—(1) Subject to paragraphs (2) and (3), to qualify for a young carer grant the applicant must,

on the day their application is made for that assistance, be—

(a) habitually resident in the United Kingdom, the Channel Islands, the Isle of Man, the

European Economic Area or Switzerland, and

(b) ordinarily resident in Scotland.

(a) 1992 c.4. Section 70 was amended to provide for carer’s allowance by articles 2 and 3 of, and paragraph 2 of the schedule

of, S.I. 2002/1457. There are other amendments to section 70 that are not relevant to these Regulations. (b) 1992 c.7. Section 70 was amended to provide for carer’s allowance by articles 2 and 3 of S.R. 2002/321. There are other

amendments to section 70 that are not relevant to these Regulations. (c) 1999 c.33. There are amendments to section 115 that are not relevant to these Regulations. (d) S.I. 2000/636.

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(2) Paragraph (1)(a) does not apply to the following persons (if they meet the condition in

paragraph (1)(b) of being ordinarily resident in Scotland)—

(a) a refugee within the definition in Article 1 of the Convention relating to the status of

refugees done at Geneva on 28 July 1951, as extended by article 1(2) of the Protocol

relating to the status of refugees done at New York on 31 January 1967,

(b) a person who has been granted, or who is deemed to have been granted, leave outside the

rules made under section 3(2) of the Immigration Act 1971(a), where that leave is—

(i) discretionary leave to enter or remain in the United Kingdom,

(ii) leave to remain under the destitution domestic violence concession, or

(iii) leave deemed to have been granted by virtue of regulation 3 of the Displaced Persons

(Temporary Protection) Regulations 2005(b),

(c) a person who has humanitarian protection granted under the rules made under section

3(2) of the Immigration Act 1971, or

(d) a person who—

(i) is not subject to immigration control within the meaning of section 115(9) of the

Immigration and Asylum Act 1999(c), and

(ii) is in the United Kingdom as a result of deportation, expulsion or other removal by

compulsion of law from another country to the United Kingdom.

(3) An applicant who is not ordinarily resident in the United Kingdom does not need to meet the

condition in paragraph (1)(b) (and therefore is entitled to a young carer grant) if they—

(a) have previously been properly paid a young carer grant,

(b) have since the day of their application for the young carer grant that was properly paid, or

the later of two such grants, left the United Kingdom to become ordinarily resident in the

European Economic Area or Switzerland and remain ordinarily resident there,

(c) apply for a further young carer grant, and

(d) meet the other conditions prescribed in these Regulations.

PART 3

Procedural matters

Periods for redetermination requests

9.—(1) The period for requesting a re-determination of entitlement to a young carer grant, under

section 41 of the Social Security (Scotland) Act 2018, is 31 days beginning with the day that the

applicant is informed, in accordance with section 40 of that Act, of the right to make the request.

(2) The period allowed for re-determination (within the meaning of section 43 of that Act) is 16

working days beginning with—

(a) the day that the request for a re-determination is received by the Scottish Ministers, or

(b) where the request for a re-determination is received by the Scottish Ministers later than

the period prescribed by paragraph (1), the day on which the Scottish Ministers, or on

appeal the First-tier Tribunal for Scotland, decide that the applicant has a good reason for

not requesting the re-determination sooner.

(3) For the purpose of paragraph (2), a “working day” is a day other than—

(a) a Saturday,

(a) 1971 c.77. (b) S.I. 2005/1379. (c) 1999 c.33.

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(b) a Sunday, or

(c) a bank holiday in Scotland under the Banking and Financial Dealings Act 1971(a).

Multiple applications involving care of the same person

10.—(1) Paragraphs (2) and (3) apply where two or more applicants state that they are caring for

the same person.

(2) The Scottish Ministers must determine which (if any) of the applicants is to be entitled to

receive a young carer grant.

(3) Where the applications were made at different times, the Scottish Ministers must determine

the application made first before determining any other application.

Determination following backdated award of assistance

11.—(1) The Scottish Ministers are to make a determination of an individual’s entitlement to a

young carer grant without receiving an application where—

(a) an application has previously been made for a young carer grant (“the application”),

(b) the determination made in respect of the application was that the applicant was not

entitled to a young carer grant,

(c) the only reason for the applicant not being entitled to a young carer grant was that a

person being cared for was not in receipt of a qualifying disability benefit as required by

regulation 6 throughout the qualifying period for the application and on the day of the

application,

(d) the Scottish Ministers establish that—

(i) an award of a qualifying disability benefit has been made to the person being cared

for that is a backdated award,

(ii) had that award been made before the day of the application, a determination that the

individual is entitled to a young carer grant would have been made instead, and

(e) no other person has received a young carer grant since the day of the application, in

respect of care of the person being cared for.

(2) In making a determination required by paragraph (1) the Scottish Ministers are to use—

(a) the information provided in the application that led to the original determination, and

(b) any other information they have obtained in connection with that application.

(3) Where a determination is to be, or has been, made without an application by virtue of this

regulation, references in these Regulations to the day the application is made are to be read as

references to the day the application that led to the original determination was made.

(4) In this regulation a “backdated award” means an award of assistance for a day, or a period

that begins on a day, that falls before the day the decision to make that award was taken.

PART 4

Assistance to be given

Amount and form of young carer grants

12.—(1) A young carer grant is to be given as a payment of £300.

(2) A young carer grant is to be given as money (subject to paragraph (3)).

(a) 1971 c.80. Schedule 1, paragraph 2 sets out the Scottish bank holidays; it is amended by the St Andrew’s Day Bank

Holiday (Scotland) Act 2007 (asp 2), section 1.

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(3) If—

(a) the Scottish Ministers offer to give an applicant some or all of the value of a young carer

grant in a form other than money, and

(b) the applicant agrees to be given the grant in that form,

the grant is to be given in that form, unless the applicant withdraws agreement before the grant is

given.

Name

A member of the Scottish Government

St Andrew’s House,

Edinburgh

Date

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EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations make provision under section 28 of the Social Security (Scotland) Act 2018 for

payments to be made to help young persons who care for disabled persons.

Part 1 is formal and contains commencement and interpretation provisions.

Regulations 3 and 4 provide that applications are required and make provision in respect of the

age limits for applicants.

Regulations 5 to 7 set out entitlement rules. These are based on the amount of care provided over a

13 week period, the activity involved, the persons to whom care is provided and rules relating to

receipt of social security assistance and immigration status. Regulation 8 describes residence

requirements.

Regulation 9 prescribes periods for making requests for redetermination of decisions on

applications and for responding to those requests.

Regulation 10 describes what is to happen where applications are made by more than one person.

Regulation 11 prescribes a situation in which the Scottish Ministers are required to determine,

without receiving an application, that a person is entitled to a young carer grant. This is to be done

where a person being cared for receives a backdated award of a social security benefit, that would

have altered a previous determination had the award been made before that determination was

made, where certain conditions are met.

Regulation 12 sets out the amount of a young carer grant that is to be given to persons who qualify

for the grant.

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POLICY NOTE

The Carer’s Assistance (Young Carer Grants) (Scotland) Regulations 2019

SSI 2019/

The above instrument will, if approved by the Scottish Parliament, be made in exercise of the powers

conferred by sections 28, 41(4)(a), 43(5) and 52 of the Social Security (Scotland) Act 2018 and all

other powers enabling Ministers to do so. The instrument is subject to affirmative procedure. As

required by section 97(2) of that Act, the Scottish Ministers have consulted the Scottish Commission

on Social Security and a response to the Commission’s report on the proposals is laid along with the

draft instrument.

The purpose of this instrument is to provide for a Young Carer Grant, a new type of assistance for

young people aged 16-18 who provide an average of 16 hours of care weekly over a 13 week

period to a person who is normally paid a qualifying disability benefit. Provision is also made for

situations where care is provided to more than one person. Usually, a person will have to apply for

the assistance.

Policy Objectives

Section 28 and schedule 2 of the Social Security (Scotland) Act 2018 make provision for carer’s

assistance and require that the Scottish Ministers in making regulations must: -

• base entitlement on the primary eligibility criteria set out in paragraph 1(1) of the schedule, of a

person having “provided regular and substantial care” during a period “to another person to whom a

disability benefit is normally payable”;

• set out the circumstances in which a person is regarded as having provided regular and substantial

care;

• set out the eligibility rules; and

describe what assistance a person is entitled to receive.

The Young Carer Grant will be a form of carer’s assistance, intended to support young carers aged

16-18 who are at a key transitional point in their lives by offering financial support.

For many young adults with significant caring responsibilities, their opportunities may be limited by

their caring role. The aim of the Young Carer Grant is to help young people improve their quality of

life and help them improve their health and education outcomes.

It is intended that the Young Carer Grant will help deliver the social security outcomes that carers:

are supported to look after their own health and wellbeing, improve their quality of life and

reduce any negative impact of caring;

participate fully in society and, if they choose, can engage in training, education and employment

opportunities, as well as social and leisure;

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have an increased sense of control and empowerment over their lives.

The regulations provide detailed rules relating to the Young Carer Grant. They include provision for

eligibility, including residence, what assistance is available, the value of the payment and when to

apply. The regulations also include provision for timescales for the processing of redeterminations

and certain issues of process relating to application dates.

Consultation

A public consultation on the Young Carer Grant draft regulations ran from 17 September 2018 to 10

December 2018. During this time we engaged with over 100 young people and stakeholders across

the country at various consultation events. There were 75 responses to the consultation and the

Independent Analysis report is available on the Scottish Government website. The Social Security

Committee and the Disability and Carer Benefits Expert Advisory Group also responded directly to

The Cabinet Secretary for Social Security and Older People with their recommendations.

A detailed response to the consultation report by the Scottish Government is published alongside the

regulations. A full list of those consulted and who agreed to the release of this information is attached

to the consultation report published on the Scottish Government website, it includes Carers Trust

Scotland, National Carer Organisations, Child Poverty Action Group (CPAG), Citizens Advice

Scotland (CAS) and Health and Social Care Alliance Scotland.

In response to consultation responses outlining the eligibility criteria for the grant, the policy on the

age criteria has been further developed and the regulations propose that the grant will be paid to all

18 year old young carers, not just those are still at school. Proposals in the consultation on what the

definition of care should be were not supported, with responses highlighting that the definition was

too prescriptive. Policy has changed as a result and the definition of care was redrafted to reflect that

the care provided must involve activity that promotes the physical, mental or emotional well-being of

the person being cared for, to acknowledge the different types of care young people are providing.

The consultation set out proposed timescales for requesting and processing a re-determination. These

were supported by the majority of respondents and are included in the regulations.

In parallel with the consultation, the Young Carer Grant is the first benefit to be independently

scrutinised by the newly formed Scottish Commission on Social Security (SCoSS). SCoSS board

members were provided with draft regulations and provided a report . Their report was received on 17

May and contained 17 recommendations. Their report was also laid before the Scottish Parliament and

published online.

The Scottish Government’s response to SCoSS’s report will be published at the same time as the draft

regulations are laid in Parliament.

.Impact Assessments

The following impact assessments have been completed and are attached:

• A Child Rights and Wellbeing Impact Assessment

• An Equalities Impact Assessment

• A Business Regulatory Impact Assessment

• An Islands Screening Assessment

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Financial Effects

A partial Business and Regulatory Impact Assessment (BRIA) has been completed. The impact of

this policy on business is limited and no quantifiable financial effects have been identified.

Scottish Government Social Security Policy Directorate June 2019

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Social Security Committee

20th Meeting, 2019 (Session 5), Thursday 19 September 2019

Subordinate Legislation

Overview

1. The instrument below is subject to the negative instrument. It is an amendinginstrument brought forward to address the DPLR Committee’s recommendationthat Regulation 18 of the Welfare Foods (Best Start Foods) (Scotland)Regulations 2019 SSI 2019/193 could be clearer. As such, the Regulations forconsideration are simply technical changes.

Welfare Foods (Best Start Foods) (Scotland) Amendment Regulations 2019 (SSI2019/232)

2. This Committee is the designated lead and the Instrument and Policy Note areattached at Annexe A.

Previous Committee consideration

3. On 20 June 2019, the Social Security Committee considered and noted theWelfare Foods (Best Start Foods) (Scotland) Regulations 2019 SSI/193. In notingthe instrument, the Committee agreed to write to the Minister for Public Health,Sport and Wellbeing with questions about the qualifying criteria, legislative routechosen, take-up and uprating. No response has been received from the Minister.

Delegated Powers and Law Reform Committee consideration

4. The DPLR Committee considered this amending instrument at its meeting on 3

September 2019 and drew the Regulations to the attention of the Parliament as

the 28-day laying requirement had not been complied with. The DPLR Committee

is content that the failure to comply was acceptable in the circumstances.

For Decision

5. The Committee is invited to consider and note the instrument.

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S C O T T I S H S T A T U T O R Y I N S T R U M E N T S

2019 No. 232

FOOD

The Welfare Foods (Best Start Foods) (Scotland) Amendment

Regulations 2019

Made - - - - at 10.15 a.m. on 27th June 2019

Laid before the Scottish Parliament at 2.15 p.m. on 27th June

2019

Coming into force - - 11th August 2019

The Scottish Ministers make the following Regulations in exercise of the powers conferred by

section 13 of the Social Security Act 1988(a) and all other powers enabling them to do so.

In accordance with section 13(2) of the Social Security Act 1988, the Scottish Ministers have

consulted the National Assembly for Wales.

Citation and commencement

1. These Regulations may be cited as the Welfare Foods (Best Start Foods) (Scotland)

Amendment Regulations 2019 and come into force on 11 August 2019.

Amendments to the Welfare Foods (Best Start Foods) (Scotland) Regulations 2019

2. The Welfare Foods (Best Start Foods) (Scotland) Regulations 2019(b) are amended in

accordance with regulations 3 to 5.

3. In regulation 2 (general interpretation), before the definition of “assessment period” insert—

““the 1992 Act” means the Social Security Administration Act 1992(c)”.

4. In regulation 17 (application of enactments – offences)—

(a) in paragraph (1), for “the Social Security Administration Act 1992 (“the 1992 Act”)”

substitute “the 1992 Act”,

(b) in paragraph (2)(b) after “1988” insert “or subordinate legislation made, or having effect

as if made, under it”.

(a) 1988 c.7. Section 13 was substituted by section 185(1) of the Health and Social Care (Community Health and Standards) Act 2003 (c.43) and amended by section 27(5) of the Scotland Act 2016 (c.11) (“the 2016 Act”). The functions of the Secretary of State were transferred to the Scottish Ministers by virtue of section 53 of the Scotland Act 1998 (c.46) as read with section 32 of the 2016 Act.

(b) S.S.I. 2019/193. (c) 1992 c.5.

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ANNEXE A

5. For regulation 18 (further offences) substitute—

“18.—(1) For the purposes of section 13(9) of the Social Security Act 1988, it is directed

that section 113 of the 1992 Act has effect as if paragraph (2) had been made under it,

subject to the modification in paragraph (3).

(2) A person who fails to comply with regulation 12 or regulation 16(2) is guilty of an

offence under these Regulations.

(3) Section 113(3) of the 1992 Act has effect as if paragraph (b) were omitted.”.

JOE FITZPATRICK

Authorised to sign by the Scottish Ministers

St Andrew’s House,

Edinburgh

At 10.15 a.m. on 27th June 2019

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EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations amend the Welfare Foods (Best Start Foods) (Scotland) Regulations 2019 (“the

principal regulations”).

Regulation 3 inserts a definition of “the 1992 Act” into the principal regulations. This definition is

used in regulations 17 and 18 of the principal regulations.

Regulation 4(b) alters the modification to section 113(1A) of the Social Security Administration

Act 1992 as it is applied by regulation 17(2)(b) of the principal regulations.

Regulation 5 inserts a new regulation 18 into the principal Regulations. Regulation 18 relates to

offences under the principal regulations.

No Business and Regulatory Impact Assessment has been prepared in relation to these

Regulations, as no impact upon business, charities or voluntary bodies is foreseen.

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POLICY NOTE

The Welfare Foods (Best Start Foods) (Scotland) Amendment Regulations 2019

SSI 2019/232

The above instrument was made in exercise of the powers conferred by section 13 of the

Social Security Act 1988 (“the 1988 Act”). The instrument is subject to negative procedure.

Purpose

These regulations amend the Welfare Foods (Best Start Foods) (Scotland) Regulations

2019 SSI/193 (“the principal instrument”) to clarify detail and use of enabling powers in

the approach to offences contained within the principal instrument.

Policy Objectives

Best Start Foods will replace the Healthy Start Voucher scheme in Scotland from 12 August

2019. Best Start Foods will provide financial support to families with young children on

certain low income benefits to access healthy food to build and maintain healthy diets. The

principal instrument was made on 30 May 2019 and laid before the Scottish Parliament on 31

May 2019. The Welfare Foods (Best Start Foods) (Scotland) Amendment Regulations 2019

(“the Regulations”) will make amendments to clarify detail around regulation 18 of the

principal instrument to ensure the principal instrument is as clear, effective and accessible as

possible.

This amendment will clarify reference to offences and the application of certain enactments

by inserting a new regulation 18 into the principal instrument. Regulation 18 concerns the

offence of breaching the Regulations, in particular it is an offence to a fail to notify Scottish

Ministers of a change in circumstances that would affect entitlement to the benefit and it is an

offence to fail to return a payment card that has been issued for the purposes of Best Start

Foods, if requested by Scottish Ministers.

These amendments simply make technical changes to the principal instrument for the

purposes of clarification. They do not change meaning or policy intent.

Consultation

As part of the policy development of Best Start Foods policy a public consultation alongside

a significant amount of stakeholder engagement. No formal consultation has taken place for

this amending legislation as these were not deemed necessary as the Regulations only make

technical changes to the principal instrument. No policy changes have been made.

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Impact Assessments

In developing Best Start Foods policy a number of impact assessments have been developed,

including a Business Regulatory Impact Assessment (BRIA), Equality Impact Assessment

and Children’s Rights Impact Assessment (CRWIA). These impact assessments evaluated the

impact of Best Start Foods on certain groups of people. In reference to the Regulations, no

impact assessments have been carried out. As there has been no change in policy there is not

expected to be any additional impact as an outcome of these regulations due to the technical

nature of the amendments.

Financial Effects

The Minister for Public Health, Sport and Wellbeing confirms that no BRIA is necessary as

the instrument does not make any changes to policy and is purely technical in nature,

therefore has no financial effects on the Scottish Government, local government or on

business.

Scottish Government

Children and Families Directorate

27 June 2019

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