The Carers Assistance (Carer Payment Support) (Scotland) Regulations 2023

Date Legislation considered: 24 January 2024

Date Legislation in Force: In part 19 November 2023 and in full on 1 October 2024

Relevant Withdrawal Agreement/EEA EFTA Separation Agreement Right(s): Residence/Discrimination/Equal Treatment/Social Security coordination

What does the legislation do?

The policy note accompanying these Regulations provides a background to the purpose of these Regulations. It states:

‘This instrument sets out the rules and eligibility criteria for Carer Support Payment (CSP), a form of assistance to provide support to people providing regular and substantial care to another individual who normally receives a certain rate of disability assistance. This new form of social security assistance will be administered by Social Security Scotland and will replace Carer’s Allowance in Scotland.’

Further information about Carer Support Payment (CSP) can be found on the Scottish Government’s website.

There will be a phased roll out approach for CSP. An initial period for applications will begin from 19 November 2023 until 30 September 2024 for residents in one of the local authorities within the pilot areas with nationwide coverage beginning in phases thereafter.

Regulation 6 in Part 3 of the Regulations sets out the residence and presence conditions for entitlement of CSP. In general terms, those individuals who hold pre-settled status or settled status and who are ordinarily resident[1] in Scotland are eligible for CSP (subject to their meeting the other relevant criteria.).

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 EUSS after 30 June 2021, including joining family members of EU and EEA EFTA citizens are entitled to the rights provided under the Agreements[2] while their application is being determined. 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 CSP.

In addition to being ordinarily resident in Scotland, to receive CSP, 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 unless the test is dis-applied in certain circumstances.

However, this requirement does not apply where the applicant: –

• Is habitually resident[3] 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.


Whilst the Regulations set out the eligibility rules for CSP, they 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 after 30 June 2021) whose application has not been finally determined, are eligible for CSP. 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 who have arrived before the 1 January 2021 but have yet to apply to the EU Settlement Scheme are subject to immigration control and are therefore ineligible for CSP unless and until an application to the EU Settlement Scheme is submitted, at which point the individual and any joining family members of EU and EEA EFTA citizens satisfy the residence and presence criteria unless they receive a negative EU Settlement Scheme decision and have exhausted all appeal rights against that decision.

Scottish Government officials have also confirmed EU and EEA EFTA citizens arriving on or after 1 January 2021 will be treated in the same way as third country nationals, except where they are joining a family member with pre-settled or settled status in which case, they are able to enter the protected cohort, provided they make an application to the EU Settlement Scheme within 3 months of arrival in the UK. Those who apply after their initial 3-month period in the UK will be assessed on an individual basis; their EU Settlement Scheme status may be granted if the reason for their late application is accepted, and their rights protected during the assessment period.

This clarifies the intention that all those with rights under the Agreements, including late applicants to the EUSS and joining family members, may access CSP where they meet the other eligibility criteria.

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.

[1] ‘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.

[2] See Article 18(2) and (3) of the Withdrawal Agreement and Article 17(2) and (3) of the EEA EFTA Separation Agreement.

[3] ‘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.