Date Legislation Considered: 01 April 2022
Date Legislation in Force: 31 March 2022
Potential Right(s) Affected: Residence, Equal Treatment, Social Security Coordination
What does the legislation do?
The policy note accompanying these Regulations provides a brief background to the purpose of these regulations. It states:
“This instrument sets out the rules and eligibility criteria for Adult Disability Payment (ADP), a form of assistance to provide support to disabled individuals between the ages of 16 and (subject to some exceptions) state pension age to mitigate the additional costs of living with a disability or health condition. This new form of social security assistance will replace Personal Independence Payment (PIP) in Scotland.”
ADP will be a payment for adults under pension age who do not already get disability benefits from the UK Government’s Department for Work and Pensions. Further information about Adult Disability Payment (“ADP”) can be found on the Scottish Government’s website.
The Scottish Government state that ADP will launch for applications in pilot areas in March 2022 and be rolled out further during the summer, with nationwide coverage beginning at the end of August 2022.
Part 5 of these Regulations sets out the residence and presence conditions for entitlement to ADP.
In general terms, those individuals who hold pre-settled status or settled status and who are ordinarily resident* in Scotland are eligible for ADP (subject to their meeting any other criteria e.g. age, disability etc.).
EU citizens and EEA EFTA citizens and their family members who have a pending application for status made under the UK Government’s EU Settlement Scheme submitted by 30 June 2021 are also eligible for assistance (subject to their meeting any other criteria) by virtue of the Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020.
Applicants to the EU Settlement Scheme after 30 June 2021, including joining family members of EU and EEA EFTA citizens (who make an application within 3 months of arrival in the UK, but after 30 June 2021) are entitled to the rights provided under Part 2 of the Withdrawal Agreement and Part 2 of the EEA EFTA Separation Agreement* while their application is being processed. This was recognised in an announcement made by the UK Government’s Home Office on 6 August 2021. No UK domestic legislation is in place to specifically reflect these rights. It is unclear on the face of these Regulations whether late applicants or joining family members are eligible for ADP.
In addition to being ordinarily resident in Scotland, to receive ADP, applicants must usually have lived in the common travel area (UK, Republic of Ireland, Channel Islands and Isle of Man) for 26 weeks out of the last 52.
However, this requirement does not apply where the applicant:-
- Is habitually resident* in the UK, or in an EU or EEA EFTA state or Gibraltar;
- falls within scope of the social security coordination rules in Part 2 of the Agreements; and
- where they live in the UK, the UK is responsible for payment of cash sickness benefits; or
- where they live outside the UK they have a ‘genuine and sufficient link’ to Scotland.
* ‘Ordinarily resident’ has not been defined in the legislation but has a generally accepted meaning which has been provided by the courts. It broadly means a person’s abode in a particular place or country which has been adopted voluntarily and for settled purpose, whether short or long in duration. A settled purpose could include education, business, employment, health or family.
*See Article 18(2) and (3) of the Withdrawal Agreement and Article 17(2) and (3) of the EEA EFTA Separation Agreement.
*’Habitually resident’ is not defined in the legislation but the courts have provided some guidance as to its meaning. In very basic terms it requires two components to be met: (1) the person must have resided in the place for an appreciable period of time (which could be a period of one month), and (2) the person must have a settled intention to reside in the place.
The IMA is concerned that the Regulations do not make it clear that applicants to the EU Settlement Scheme after 30 June 2021, including joining family members of EU and EEA EFTA citizens (who make an application within 3 months of arrival in the UK, but after 30 June 2021) whose application has not been processed, are eligible for ADP. This raises a question as to whether the Regulations fully implement Part 2 of the Agreements, in particular Articles 18(1)(b) and 18(2) and (3) of the Withdrawal Agreement and Articles 17(1)(b) and 17(2) and (3) of the EEA EFTA Separation Agreement.
In correspondence between the IMA and officials at the Scottish Government, officials have indicated that applicants to the EU Settlement Scheme after 30 June 2021, including joining family members of EU and EEA EFTA citizens (who make an application within 3 months of arrival in the UK, but after 30 June 2021) whose application has not been processed, are eligible for ADP. They have drawn attention to the operational decision making guidance which is available publicly at: Social Security Scotland – Decision Making Guide. The IMA notes that the guidance on residence and presence* (paragraphs 72 – 83) does not reflect the fact that late applicants (including joining family members) are eligible for ADP. The IMA further notes that the guidance is stated to be in draft “and is subject to change as the roll-out continues ahead of national launch in August”. Officials at the Scottish Government have committed to updating the guidance and publishing a new version as soon as possible. Whilst officials have advised us that they are not aware of anyone who has been incorrectly denied ADP as a result of the guidance, they are liaising with Social Security Scotland to ensure that the Scottish Government’s policy on late applicants and joining family members is correctly implemented.
Any citizen experiencing difficulties in exercising their rights are encouraged to report a complaint through the IMA Portal.
Further information about the IMA and guidance on how to report complaints can also be found on the Website.
*Accessed 27 April 2022