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Social Security (Scotland) Act 2018 (Disability Assistance for Children and Young People) (Consequential Modifications) (No. 2) Order 2021

Volume 815: debated on Tuesday 9 November 2021

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Social Security (Scotland) Act 2018 (Disability Assistance for Children and Young People) (Consequential Modifications) (No. 2) Order 2021.

My Lords, I beg to move that the draft order, which was laid on 7 September 2021, be approved. This order, which delivers for the people of Scotland, is fully supported by the UK and Scottish Governments. It is the result of close contact between the two Governments over the past year and highlights the importance the UK Government place on the effective functioning of devolution and the strength of the union.

We have a long tradition in this country of supporting children with extra needs through disability benefits. Since the mid-1970s, we have provided support through the attendance allowance and mobility allowance and, since 1992, the disability living allowance. There are nearly 43,000 disabled children in Scotland entitled to the disability living allowance. These amendments will ensure that their treatment is equitable to the 479,000 children in England and 27,000 in Wales. Children must be able to access adequate care, including unpaid care from family members. The order before noble Lords today will ensure that can happen by making the child disability payment a qualifying benefit for the carer’s allowance in England and Wales.

The Scottish Government have the authority to deliver new forms of disability assistance, using social security powers devolved to them through the Scotland Act 2016. The Scottish Government introduced their first form of disability assistance for children and young people on 26 July 2021. This is called the child disability payment. The child disability payment will operate in a very similar way to the existing benefits currently provided by the DWP. It is therefore the intention of the UK and Scottish Governments to ensure that there is equal treatment for child disability payment recipients to those who receive similar benefits in England and Wales.

I shall explain the purpose and effect of the order. The UK Government have agreed that, as the child disability payment will operate as broadly equivalent to the disability living allowance for children, provided by the DWP, it should also act as a qualifying benefit for the Christmas bonus. The Christmas bonus is a one-off tax-free £10 payment made annually before Christmas to customers who get certain qualifying benefits in a certain qualifying week.

For this change to happen, the Social Security Contributions and Benefits Act 1992 must be changed to list the child disability payment as a qualifying benefit to determine entitlement to the Christmas bonus. This order is being taken through Parliament now to ensure that those who are in receipt of the child disability payment in the qualifying week will be eligible for the Christmas bonus. A delay to the order being in force could result in eligible people missing out on reserved payments.

The order also makes some amendments relating to the carer’s allowance for England and Wales. There is the possibility that someone living near the Scottish border but outside of Scotland may be caring for someone in receipt of the child disability payment in Scotland. Although these cases are likely to be rare, this change to legislation in England and Wales would ensure that someone in this situation would still be entitled to the carer’s allowance.

This order also amends UK legislation to ensure that the child disability payment can be treated as a qualifying benefit for entitlement to class 3 national insurance carer’s credit, which protects individuals’ state pensions. This credit can be awarded, on application, to people who are looking after one or more people for at least 20 hours a week and the person being cared for is receiving the disability living allowance for children. To ensure equal treatment, we are amending UK legislation to ensure that the child disability payment can also be treated as a qualifying benefit for entitlement to the carer’s credit.

Lastly, the Scottish Government have committed to continue to pay child disability payment for 13 weeks after a claimant has left Scotland if they have moved to another part of the UK. This will reduce the risk of claimants experiencing a break in payment. Consequential amendments are therefore required to Northern Ireland regulations to provide for the interaction of child disability payment with benefits there during the 13-week run-on period. The Scottish Government have estimated that the number of people moving from Scotland to Northern Ireland who would fall under this order is likely to be very low. However, the amendments are considered necessary and beneficial to ensure that carers can access carer’s allowance and carer’s credit during the 13-week run-on period.

The Minister for Welfare Delivery in the other place presented this instrument to its committee on 2 November. It was regarded as wholly technical and passed with no concerns. I hope the noble and learned Lord agrees with that assessment based on what I have set out today. I therefore commend the order to the Committee and beg to move.

My Lords, I hope that I have the right statutory instrument and that I am not speaking on the wrong one. I am particularly pleased to welcome this statutory instrument, which means that children will not have to go through compulsory face-to-face assessments and will not have to undergo repeated applications. I gather that clinical reports will be collected as a matter of course. I make a plea that a disabled child under three should, if eligible, be entitled to the highest mobility component so that parents are able to apply for a Motability car. It sounds as though lessons have been learned from the recent pilot and that the whole experience surrounding the benefit will be as stress free as possible.

I thank the noble Viscount, Lord Younger of Leckie, for his clear exposition. We support this order and think that it is beneficial. We understand the effect to be that the child disability payment will be treated as a qualifying benefit for Christmas bonus, carer’s allowance and carer’s credit in the same way as the disability living allowance for children is currently treated, and that that is the primary purpose of the order for Scotland. I hope the noble Viscount can confirm that that is the position.

Can the Minister help me on two issues? In accordance with the correct procedure, this is a draft order, hence the name of the Secretary of State has not been put in at the end. The noble Viscount referred to this having effect for the “qualifying week” for the Christmas bonus. Can he indicate when this will come into force? If one looks at the beginning of the draft it says “made” and “coming into force”. Obviously “made” depends upon today, but I am not sure what date is envisaged for coming into force. Can the noble Viscount indicate what it is and what the qualifying week is for the purpose of the Christmas bonus?

I understand the key bit of this measure to be paragraphs (3) and (4) of the draft order. Does paragraph (3) get the disability payment to be treated in the same way as previously? What is the significance of

“the care component of child disability payment at the middle or highest rate in accordance with regulation 11”?

What does that mean? Is there an alternative that could have been used that might have been better?

Moving on from the technical detail of the order, the noble Viscount said that the DWP was in close contact with the Scottish Government on these issues. The compounding cost of living crisis, with rising energy bills, rising taxes and cuts to universal credit, has made the position of many families in Scotland particularly difficult. Has the department or the Minister had any discussions with Scottish Ministers about why it has taken so long for the Scottish Government to use the powers afforded to them to devolve benefits in Scotland? It will now take until 2025 for some benefits to be devolved after the Scottish Government sought to delay implementation. Why is that?

In our view, the Scottish Government have not gone far enough with those benefits which have been devolved—they could have made the carer’s supplement permanent or made eligibility for disability benefits fairer, but they have failed to do either. Has the Minister or his department discussed with Scottish Ministers their approach to the social security system, which seems more in keeping with the approach of the DWP in England than with a separate system? Has the Minister or his department identified any areas where savings could be made for the Scottish taxpayer—for example, by using existing UK government infrastructure to make payments, rather than setting up costly new methods which replicate those which already exist?

I end by expressing appreciation for the approach that the noble Viscount has taken in laying this statutory instrument before Parliament. As I said, it is one we support, so that families can receive the payments they are entitled to ahead of and during what could be a very difficult winter for many.

I thank the noble Baroness, Lady Thomas of Winchester, and the noble and learned Lord, Lord Falconer, for their comments. I shall try to respond to as many of them as I can.

The first point raised by the noble Baroness was on assessments of children and how many were face to face. Although I cannot answer that, what I can say—which would be the sensible thing to say and I am sure is true—is that assessments with children must be kept to the minimum, because I have no doubt that they could be challenging or traumatic. I shall definitely write to the noble Baroness if the answer to her question is any different from that which I have given. The handling of disabled children is a very sensitive matter and must be done with great care. I hope that helps.

Perhaps I may start by making some general comments, which I hope will help with some of the points raised by the noble and learned Lord. We believe that this order is a sensible and pragmatic step on the part of the UK Government to ensure that CDP can be treated as a qualifying benefit for the Christmas bonus, carer’s allowance and carer’s credit. To reiterate what I said at the outset, the UK Government are fully committed to devolution and honouring our commitments. All sections of the Scotland Act 2016 are now in force, meaning that the Scottish Parliament is able to legislate in every area where the Act has given it the power to do so.

We continue to work closely with the Scottish Government and have made significant progress in transferring the powers devolved to the Scottish Parliament. It may help to answer one question raised by the noble and learned Lord to say that our discussions with the Scottish Government are important and ongoing, and I have no doubt that the points that he raised are discussed regularly with them.

This order comes on top of other initiatives. On the back of what we have been doing, Scottish Ministers have been able to launch the child disability payment, the job start payment, child winter heating assistance, Fair Start Scotland, carer’s allowance supplement, Best Start Foods scheme, the young carer’s grant and funeral support payment as a result of such powers having been passed to the Scottish Parliament.

Let me address the specific question asked by the noble and learned Lord about what this order does. I can confirm that it will ensure that the child disability payment is added to the list of qualifying benefits for the annual Christmas bonus payment. It will also ensure that the carer’s allowance can be paid in England or Wales to those who care for someone in Scotland who is in receipt of the child disability payment. Further, it includes some time-limited provisions in relation to the carer’s allowance and carer’s credit in Northern Ireland. I think I said that, but I want to reiterate that that is what this order is about.

The noble and learned Lord asked about timings and when the order will come into force. That is a fair question. The target in-force date for this order is 17 November 2012—quite soon—and is obviously subject to parliamentary approval. He asked about the qualifying week for the Christmas bonus. It will be the first week in December. I hope that helps.

The noble and learned Lord also asked why it has taken the Scottish Government so long to deliver this. Again, that is a fair question. It is, as he will expect me to say, a matter for the Scottish Government. To give a little more breadth to this answer, let me say, as the noble and learned Lord might expect me to, that, to be fair to the Scottish Government, Covid-19 has had a major impact on the delivery of this measure. It is complex. Both the Scottish and UK Governments are committed to delivering this in a safe and secure way that makes sure that people continue to get the right money at the right time. However, as I say, it is for the Scottish Government to answer the noble and learned Lord’s question.

I was asked why the Scottish Government are not doing more and whether they are doing enough on these particular measures. I would argue that that is a little outside the scope of this order, but let me finish by saying what I said at the outset: we believe that the order is a sensible and pragmatic step in continuing the devolution of social security powers.

I believe that I have answered most of the questions from noble Lords. I hope that I have satisfied the noble and learned Lord. I will look carefully at Hansard to make sure that everything has been covered. I finish by thanking the noble and learned Lord for his time and interest in this order.

Motion agreed.