Social Justice and Social Security Committee
This report sets out the Social Justice and Social Security Committee's consideration of The Carer's Assistance (Carer Support Payment) (Scotland) Regulations 2023. The minutes of the meeting have been published on the Committee's webpage. The Official Report of the meetings on 21 and 28 September 2023 are available on the Scottish Parliament's website.
The Carer’s Assistance (Carer Support Payment) (Scotland) Regulations 2023 was laid on 4 September 2023. This instrument is subject to the affirmative procedure, which means it is for the Committee to recommend to the Parliament whether the draft regulations should be approved.
According to the Explanatory Note and Policy Note, the instrument sets out the rules and eligibility criteria for Carer Support Payment, a new form of social security assistance which will be administered by Social Security Scotland and will replace Carer’s Allowance in Scotland.
The Policy Note states that regulations include provisions detailing the eligibility criteria, rate of assistance, making of applications and payments for Carer Support Payment.
The instrument also includes provision for those in Scotland who are in receipt of Carer’s Allowance (administered by the Department for Work and Pensions (DWP)) to transfer to Carer Support Payment (administered by Social Security Scotland).
The Scottish Government states the Carer Support Payment will improve outcomes for unpaid carers by providing financial assistance to those providing regular and substantial care to someone in receipt of a qualifying disability benefit.
It will be available to people aged 16 or over, who are providing 35 or more hours of care a week to someone in receipt of a qualifying disability benefit and who meet certain criteria e.g. residency and type of education. Carers will need to be earning less than £139 per week from employment or self-employment (after certain deductions) to be eligible for Carer Support Payment.
The Delegated Powers and Law Reform Committee considered the instrument at its meeting on 26 September 2023 and made no recommendations in its report in relation to this instrument.
The Scottish Government Legal Directorate wrote to the Scottish Parliament on 14 September to advise that the Scottish Government wished to withdraw the instrument (originally laid on 4 September 2023) to correct minor and typographical errors noted by the legal advisers to the Delegated Powers and Law Reform Committee.
They stated the errors were minor in nature and the necessary changes could therefore be made quickly. They added that it should be possible to retain the overall current Parliamentary timetable for consideration of the Regulations.
The Scottish Commission on Social Security (SCoSS) submitted its Scrutiny report on the draft Regulations to the Scottish Government and provided a copy to the Committee on 8 June 2023. The Scottish Government responded to this report on 4 September 2023.
SCoSS gave evidence to the Committee on the draft Regulations along with Minority Ethnic Carers of People Project (MECOPP), Carers Scotland and Carers Trust Scotland, on behalf of the Scottish Young Carers Services Alliance, on 21 September 2023.
The Cabinet Secretary then appeared before the Committee to give evidence on the draft Regulations on 28 September 2023.
The regulations extend eligibility to an estimated 1,500 students, but students aged 16 to 19 in full-time, non-advanced education (such as school) will only be eligible in exceptional circumstances, such as when they have no parental support. In talking about this, Carers Trust Scotland said that, while they "welcome the extension to those with exceptional circumstancesii", they advocate for extending the Carer Support Payment to all unpaid carers in advanced and non-advanced educationii.
Members were interested in why Carers Scotland and Carers Trust Scotland said they do not accept the Scottish Government’s argument that extending payments might incentivise young carers to take on a larger caring roleiv. In response, Carers Scotland said there is no evidence for the Scottish Government's position on thisiv. Carers Trust Scotland were in agreement and said they would like more detail on how the decision was madeiv. They also stated it is not about incentivising—
In 2022, from our young carer research, we found that 14 per cent of young carers were providing 50-plus hours of care a week and that around 36 per cent were providing between 20 and 49 hours a week, so it is not really about incentivisingiv.
On the topic of young carers, witnesses were also asked about the proposed rules on education and the complexity of theseviii. In written evidence, Carers Scotland said the rules would create unnecessary complexity and disadvantage unpaid carers aged 16 to 19 who already fulfill the 35-hour caregiving requirement each week. They also noted their concern that the distinction between advanced and non-advanced education could make unpaid carers aged 16 to 19 in non-advanced education "feel that their study level is regarded inferior and their caring roles are undervalued" compared to their counterparts in advanced education.
Carers Trust Scotland were in agreement with this and during oral evidence said that, although the Scottish Government states the Carer Support Payment is an income replacement benefit and that young carers aged 16 to 19 in non-advanced education are not expected to earn, many do work to supplement their income. Carers Trust Scotland also noted their research which they said shows student carers are four times more likely to quit further and higher education, with financial pressure being one of the key issues behind this, and again highlighted the need for more information from the Scottish Government on how the decision was made to exclude 16 to 19 year olds in full-time non-advanced educationx.
In responding to requests for more information on the decisions made regarding young carers, the Cabinet Secretary clarified that drafting of the regulations was based on the Scottish Government's previous consultations which recognised concerns around unsuitable roles and age-appropriate caring roles—
For example, the concerns that the disability and carers benefits expert advisory group fed back stressed the importance of ensuring that financial support does not inadvertently lead to some young carers finding themselves in unsuitable caring roles. In addition, when we consulted on the young carers grant, similar concerns were raised with us about young carers having age-appropriate caring roles. The national carers strategy, too, looks carefully at the fact that caring can be a very positive experience for young people but can also put pressure on themxi.
The Cabinet Secretary added the Scottish Government is open to working with carers organisations to explore whether further evidence can be collected and work can be done, although acknowledged this will not happen before the regulations go throughxi.
The panel discussed overpayments and SCoSS was asked if they are happy with the Scottish Government's proposals to prevent thisi. In response, SCoSS said a lot of lessons have been learned from UK processes but also suggested that redesigning systems and entitlement rules is necessaryii. They went on to say they are pleasediii the Scottish Government has accepted all their recommendations "either fully or, in some cases, partially"iv.
SCoSS provided information on additional changes it would like to see the Scottish Government action—
We would like it to go further, when it can, on making changes to entitlement rules. We understand why that cannot be done until after safe and secure transfer, and we agree that there should not be a two-tier system, but we think that, to mitigate the issue of overpayments, the Government will need to simplify the earnings rulesiii.
Witnesses were further asked what should be done when overpayments do occuriii. SCoSS emphasised the importance of reducing overpayments to a minimum by designing them out of the system. They also said they had made a recommendation that small overpayments could be written off, similar to a policy adopted by the DWP, which has been partially accepted by the Scottish Government. However, they questioned whether the threshold of £65 is appropriate, as they said it is less than a week's worth of carer support payment. SCoSS suggested that a higher threshold might be more suitable, benefiting both carers and Social Security Scotlandvii.
SCoSS also highlighted that individuals who are informed of an overpayment and its necessary recovery have no right of appeal on whether they are liable for the overpayment. They pointed out the inconsistency in this approach and expressed the need for a swift change in policy, given other determinations in the social security system allow for appealsviii.
With regards to overpayments, MECOPP expressed concern for when people have caring roles and their incomes change. They advocated for flexible solutions tailored to individuals, considering their unique circumstancesviii. MECOPP proposed empathetic support, suggesting discussions on repayment periods or even the option for overpayments to be written off, given caregivers' significant contributions—
...they are already working hundreds and hundreds of hours and saving the Government a lot of moneyviii.
Carers Trust Scotland said they were in agreement with what had already been said on this topic and placed an emphasis on Social Security Scotland's role—
The onus needs to be on Social Security Scotland to ensure that there are systems in place that make it easy for carers to declare their income in an understandable way, with clear information and processes for them to report on thatxi.
When answering questions about how to prevent overpayments, the Cabinet Secretary outlined measures aimed to reduce these, including averaging earnings over a period to provide stable support, using alerts to track carers' earnings through Social Security Scotland, and conducting scheduled reviews for self-employed carers to prevent overpayments. They also emphasised paying the Carer Support Payment four-weekly in arrears, different from the DWP's payment system, aiming to enhance accuracy of analysis.xii
Regarding overpayment liability, the Cabinet Secretary acknowledged that while carers can request a review of a decision on liability of overpayments, carried out by Social Security Scotland, stakeholders are concerned about the lack of formal redetermination or appeal rights. She stated that the Scottish Government is "looking at options for introducing a formal right of appeal for the liability of overpayments", and that it has consulted on overpayment liability and plans to address the issue through the upcoming Social Security (Amendment) (Scotland) Bill.xiii
On the £65 threshold for recovery of overpayments, the Cabinet Secretary asserted individuals' financial and personal circumstances are considered when assessing overpayments, aligning with the principles of dignity, fairness and respect. The Cabinet Secretary further explained the threshold is in line with the DWP's cost of recovery. She added that due to Social Security Scotland's relatively new status, they lack sufficient data for cost recovery assessment but that the Scottish Government plans to review the policy to determine if changes are necessaryxiv.
The Business and Regulatory Impact Assessment (BRIA) sets out policies for introduction as well as “potential changes under consideration for the future”. Witnesses were therefore asked which of the proposed future changes they believe should be prioritised following case transferii.
While Carers Trust Scotland said prioritising the various aspects in the right order is challenging, they advocated for extending eligibility to ensure more unpaid carers receive necessary support and recognition. They added that while some proposed changes may be more complex than others, such as introducing additional payments for those caring for multiple disabled individuals, it is important the Scottish Government provides a "clear timeline" regarding when changes will be madeiii. MECOPP said they agreed with these commentsiii.
Carers Scotland added the "timeline is critical" and stressed a clear plan is essential for a smooth transition after safe and secure transferiii, emphasising why those changes that can be made quickly are actioned—
Fundamentally, some things, such as putting more money into carers’ pockets, are critical for those who are caring for more than one person. Equally, we could make some changes around the earnings threshold relatively easily by changing the figure for that threshold. At the moment, it is about 13 hours at the minimum wage, and then you lose all entitlement. Even if we were to bring the threshold up to 16 hours at the real living wage, that would put an extra £2,000 a year into carers’ pockets. In some ways, the system would already be in place, so, in my view, it would be about adjusting the figures.
I definitely understand the attraction of trying to get the simple things, like the run-on, changed very quickly. Fundamentally, the priority is to get more money into carers’ pockets.iii
In terms of timelines, Carers Trust Scotland said it is "unaware of any discussion with the Scottish Government on timelines for when the changes will be made"vii.
SCoSS said the only view it took was around redesigning earnings rules for carers who want to work. They asserted they believe this redesign is feasible and should be a priority. While they didn't specify a timeline for other changes, they noted that changes aimed at recognising carers' role were a priority with the groups they spoke tovii.
When asked about the timetable for completion of transfer and the introduction of additional changesix, the Cabinet Secretary said the agency agreement the Scottish Government has with the DWP finishes in March 2025 and they have no concerns about the timings at presentix.
Given Carers Trust Scotland had previously indicated addressing underlying entitlement seemed to be quite low down the Scottish Government's priority listvii, this issue was raised with the Cabinet Secretaryix. In response, she said while the Scottish Government recognises there have been calls to extend the Carer Support Payment to those receiving other income replacement benefits, significant investment would be involved and discussions need to be had around affordability and sustainabilityxiii. The Cabinet Secretary went into detail about the implications of such a change—
Around 80,000 people are eligible for and get a carers allowance payment. Another 40,000 people have underlying entitlement. If the ask is that all those people get a carer support payment, significant investment would need to be undertaken. I recognise that there is that call, but such changes would need to be undertaken after case transfer and when the Government, the Parliament and stakeholders had all had a very open discussion about the affordability and sustainability of that, particularly when there are a number of calls to be made—which people are understandably making—after case transfer is complete. I hope that that gives the context of the scale of what it would mean to make that changexiv.
When pressed on prioritisation, the Cabinet Secretary reiterated the issue of cost as well as existing priorities—
I totally recognise that it is a priority for us to look at that and that there are calls for that, and I know that people are aware that such changes would not come without a significant cost. It is not a matter of their being a low priority; we simply need to do what we can in the short term and fulfil the priorities that we have laid out for after case transfer. We will then have to keep up a discussion about the other aspects—that issue is only one of them—that people would like us to bring in in addition to what the Government has already proposedxiv.
Despite the fact most of the rules for the Carer Support Payment will be the same as that of the Carer's Allowance, the BRIA states Carer Support Payment is intended to provide “an improved service from launch”. Witnesses were therefore asked their opinions on what an improved service should look likeii.
Carers Scotland highlighted the need for simplicity in applying for and accessing the Carer Support Payment. They also pointed out the necessity of a straightforward system where individuals can assess their eligibility without a full application. Carers Scotland called for an agreement between the Scottish Government, Social Security Scotland, and the pensions service to share information, simplifying the process for carers potentially eligible for other benefits like council tax reduction or rent assistanceii.
At launch, carers will be signposted to other support, but the provision of ‘wider support’ is intended to develop over time. With this in mind, stakeholders were asked about what their priorities would be for the development of thisv.
MECOPP talked about the importance of viewing the issue through an equalities lens. They highlighted the need for information to be accessible, clear, and unambiguous, and that this is especially important for groups with literacy issues or language requirements. They said clear and easily accessible information is essential to prevent heightened anxiety and ensure that everyone can access services effectivelyvi.
Speaking about the regulations more broadly, Carers Scotland acknowledge the opportunity the regulations offer to reach more people—
We will have positive information around the new payment for carers so, inevitably, those who may not have claimed before may come forward and claim. Equally, people who are receiving the carer element under universal credit might consider claiming the carer support payment, which would then make them eligible for the carers allowance supplementvi.
With a similar sentiment, MECOPP mentioned uptake across minority ethnic communities—
There is a real opportunity to increase the uptake from minority ethnic communities. We know that the uptake is low at the moment and, by providing good information and support, there is a real opportunity to improve thatvi.
On the accessibility of information, the Cabinet Secretary highlighted the challenge of some communities not recognising themselves as carers or expecting state support. She expressed the importance of collaboration with various organisations to provide information in multiple languages and easy-read formats. The Cabinet Secretary emphasised that local delivery methods are crucial, not just in making information available, but also in establishing connections with local communitiesix.
Carers Scotland expressed wariness about signposting, saying it places a burden on individualsx. Instead, they suggested that Social Security Scotland could do more when it comes to income maximisation and stressed the necessity of making it easier for carers at every stage—
There is more that Social Security Scotland can do on income maximisation, particularly when it comes to local advisers making sure that individuals are accessing the reserved benefits system and other supports that are available. For example, that might mean understanding and knowing that there is a carers centre and being able to make a formal referral, if possible. It is about some of those things. It makes sense to make it easier for carers at every step of the journeyx.
Carers Trust Scotland said they were in support of Carers Scotland's points. They also noted that Social Security Scotland does not provide advice on reserved benefits, and many miss out on benefits like pension credit. Carers Trust Scotland called for more information for carers and also highlighted the necessity of providing ample notice for those who stand to lose their entitlement, for example for those approaching the state pension age. They therefore suggested a notice period of at least six months for those approaching state pension age with an underlying entitlement to enable informed decisions and urged Social Security Scotland to incorporate this into their communication process with carersx.
Responding to queries around signposting, the Cabinet Secretary set out that efforts have already been made, and will be ongoing, to improve notifications in award letters and online content, guiding carers to available support services. She added that, while signposting is important, the Scottish Government acknowledges additional work can be donexiii.
In written evidence, stakeholders expressed their support for the regulations. In particular, Carers Scotland said—
We welcome the Scottish Government’s commitment to increase the number of carers who will benefit from Carer Support Payment when it launches nationally in 2024 and to continue to provide the Carer’s Allowance Supplement in the interim to sustain this improvement in value introduced in 2018. It is vital that more carers have access to financial support.
Similarly, Carers Trust Scotland commented—
We welcome Scottish Government’s commitment to extend Carer Support Payment to more unpaid carers when is launches nationally in Spring 2024, so that more unpaid carers get the financial support they need and deserve.
Carers Trust Scotland added they are pleased with the Scottish Government's commitment to making additional improvements and potentially expanding eligibility for the benefit after completing the case transfer process and launching the Carer Support Payment in 2024.
SCoSS was specifically asked whether the regulations as laid accurately reflect the Scottish Government’s policy intentionsiv. In response, SCoSS acknowledged the complexity of the Carer Support Payment—
In our view, it is the most complex benefit to have been devolved so far, given the multiple interactions that there are with reserved benefits in particular but also with existing Scottish benefits. The carer support payment interacts with the young carer grant. In those areas, in particular, we saw challenges in drafting the regulations accurately in order to cover those interactionsiv.
SCoSS added that while the Scottish Government had accepted their recommendations SCoSS had not conducted follow-up scrutiny—
With some of the recommendations that we made, we did not see the resulting change, although the Scottish Government accepted the recommendations that we made. In its report to SCOSS, it helpfully set out its response in detail, so it seemed to us that the issue was communicated and understood. However, I cannot say that SCOSS went back and conducted followup scrutiny of the regulations as laid. We have not cross-checked that all the changes that the Scottish Government accepted and said that it would make in response to the recommendations now completely reflect the policy intentioniv.
In speaking about the regulations more generally, SCoSS commented "the aims of carer support payment are broader and more ambitious than those for carers allowance"vii, and they noted they are pleased the Scottish Government carried out advanced work in preparation for introducing the changes quickly. They further said the Carer Support Payment aims to "recognise the caring role that is undertaken by unpaid carers", although they acknowledged that wider aims will not be achieved by implementing the Payment alone and that more changes will be needed after launchvii.
The Committee agreed to conduct further scrutiny of the Carer Support Payment to consider its operation and any future changes one year after it has come into force.
The Social Justice and Social Security Committee recommends that The Carer’s Assistance (Carer Support Payment) (Scotland) Regulations 2023 [draft] be approved.
21st Meeting of 2023 (Session 6) Thursday, 21 September, 2023
2 Subordinate legislation: The Committee took evidence on the Carer’s Assistance (Carer Support Payment) (Scotland) Regulations 2023 from—
Maggie Chiwanza, CEO, MECOPP;
Fiona Collie, Head of Policy and Public Affairs, Scotland & Northern Ireland, Carers Scotland;
Judith Paterson, Interim Co-Chair, Scottish Commission on Social Security;
Paul Traynor, Head of Scottish Young Carers Services Alliance, Carers Trust Scotland.
4 Consideration of evidence (In Private): The Committee considered the evidence heard earlier in the meeting.
23rd Meeting of 2023 (Session 6) Thursday, 28 September, 2023
3 Subordinate legislation:
The Committee took evidence on the Carer’s Assistance (Carer Support Payment) (Scotland) Regulations 2023 from—
Shirley-Anne Somerville, Cabinet Secretary for Social Justice;
Jane Sterry, Policy Lead for Carer Support Payment;
Euan Geddes, Policy Official, Carer’s Allowance Case Transfer;
Ross Grimley, Lawyer, Legal Directorate, Scottish Government.
4 Subordinate legislation:
Shirley-Anne Somerville (Cabinet Secretary for Social Justice) moved—S6M-10324—That the Social Justice and Social Security Committee recommends that the Carer’s Assistance (Carer Support Payment) (Scotland) Regulations 2023 [draft] be approved.
The motion was agreed to without division.