Date Legislation Considered: 13 April 2022
Date Legislation in Force: 09 February 2022
Potential rights affected: Residence, Equal Treatment, Social Security Coordination
What does the legislation do?
These Regulations make miscellaneous amendments to both the Scottish Child Payment Regulations 2020 and the Disability Assistance for Children and Young People (Scotland) Regulations 2021. Only some of the amendments being made to the Disability Assistance for Children and Young People (Scotland) Regulations 2021 fall within the monitoring remit of the IMA.
The policy notice to the Disability Assistance for Children and Young People (Scotland) Regulations 2021 provides a brief background as to the purpose of those Regulations. It states:
“This instrument sets out the rules and eligibility criteria for Child Disability Payment (CDP), a form of assistance to support children and young people who have a physical or mental disability, or who have a terminal illness. This new form of social security assistance will replace Disability Living Allowance for children (DLAC) in Scotland.”
CDP provides support for the extra costs that a disabled child might have. Further information about CDP can be found on the Scottish Government’s website.
Part 3 of the Disability Assistance for Children and Young People (Scotland) Regulations 2021 sets out the eligibility conditions for entitlement to CDP. The amendment made to the 2021 Regulations is to amend the condition relating to persons subject of immigration control. This amendment does not modify the substance of the condition and therefore only individuals who are not subject to immigration control are eligible (subject to meeting all other relevant criteria).
Those individuals who hold pre-settled status or settled status are not subject to immigration control and therefore potentially eligible. They would also need to be ordinarily resident* in Scotland to be eligible for CDP (subject to their meeting any other 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 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 CDP.
In addition to being ordinarily resident in Scotland, to receive CDP, 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 (subject to an exception for children under the age of 6 months where the requirement is 13 weeks out of the last 26 weeks).
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.
Comments
The IMA is concerned that the amendment made by these Regulations does 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 CDP. This raises a question as to whether the 2021 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 at the Scottish Government 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 CDP. 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 68- 77) reflects that:
“Individuals who arrived before this date [1 January 2021] but have yet to apply for EU settled status are ineligible for CDP unless and until an EUSS application is submitted, at which point that individual remains eligible unless they receive a negative EUSS decision and have exhausted all appeal rights against that decision” and that “ Family members who are joining a member of their family who already has pre-settled or settled status are able to enter the protected cohort even if they arrive after the end of 2020”.
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 on 27 April 2022