50.Chapter 2 sets out the nine types of assistance that are to be given by the Scottish Ministers under section 24. Each assistance type is described at a high level by a section of Chapter 2, setting out the characteristics of the assistance. Regulations will set out the eligibility rules that will determine entitlement to assistance and what assistance is to be provided. In all sections introducing an assistance type there is a link to a schedule which makes further provision about the content of regulations.
51.The assistance types provided for are as follows:
Carer’s assistance (section 28), which is to be provided to an individual who cares for another individual with a disability. Schedule 2 requires that eligibility for this type of assistance is to depend on a person providing, or having provided, regular and substantial care to a person with a disability that normally entitles a person to a disability benefit. The schedule provides for these terms to be further defined, and defines “disability benefit”. It describes other sorts of criteria that may be included in regulations, such as provision for situations where more than one person provides care to a disabled person.
Cold-spell heating assistance (section 29), which is to be provided to an individual to help meet heating costs in periods of cold weather. Schedule 3 requires that eligibility for this type of assistance is to depend on a person’s home being situated in an area that experiences a spell of cold weather, or is expected to experience such a spell. Amongst other criteria, eligibility may be made to depend on a person’s means or on the individual being in receipt of other types of social security assistance. That could include benefits such as income support or universal credit, and is not limited to the types of assistance provided for by the Act.
Winter heating assistance (section 30), which is to be provided to an individual to help meet heating costs in winter. Schedule 4 says that eligibility for this type of assistance may contain eligibility criteria related, amongst other things, to a person’s age and their receipt of other types of social security assistance. But, eligibility may not be made to depend on a direct assessment of the individual’s financial means, and nor may the amount of assistance given be made to turn on that factor.
Disability assistance (section 31), which is to be provided to a disabled individual on account of their disability (which can be physical or mental). It also provides for assistance to persons who are terminally ill. Schedule 5 requires that, for disability, eligibility for this type of assistance is to depend on the disability having a significant adverse effect on the person’s daily activities, that is not a short-term effect. For terminal illness the day-to-day impact of the condition is immaterial, and Chapter 3 of the schedule provides four special rules that apply. In terminal illness cases an appropriate diagnosis by a registered medical practitioner, based on guidance produced by the Chief Medical Officer, will be sufficient evidence that a person qualifies for assistance. Section 31 will enable the Scottish Government to provide for disability assistance such as is currently provided for through Disability Living Allowance, Personal Independence Payment, Attendance Allowance and Severe Disablement Allowance. Schedule 5 provides that eligibility for disability assistance cannot be means-tested. Paragraph 18 of the schedule describes types of assistance that cannot be given as lump-sum payments, because such assistance remains a reserved matter (see paragraph (c) in the definition of “excluded benefit” in Section F1 of schedule 5 of the Scotland Act 1998). This includes assistance as a result of pneumoconiosis and byssinosis.
Early years assistance (section 32), which is assistance to an individual who has costs related to having a child in their family. This includes persons who are expecting to have a child, such as due to pregnancy or an adoption arrangement. Schedule 6 requires that eligibility for this type of assistance be restricted to four broad situations (described as “primary eligibility criteria”). These are: pregnancy; a relationship to a pregnant person (such as a partner); responsibility for a child after that child’s birth; and responsibility for a child at or after a specified event in the child’s life. The sorts of events likely to be so specified, in practice, are a child reaching the age of 2 or 3 (to align with progression to early learning and the start of nursery) and starting primary education, though the Act leaves open what these events may be. It is for the regulations to define what being responsible for a child means for the purposes of determining entitlement to the assistance.
Employment-injury assistance (section 33), which is to be provided to an individual who has had an injury or contracted a disease through employment. Schedule 7 makes further provision, and requires regulations to define “employment” for these purposes, as well as what are relevant personal injuries and diseases. Any definition of “employment” cannot include within it the matters described in paragraph 3(2) of schedule 7, due to the limits of devolved competence set out in the legislation there described. In practice this type of assistance would be used to create Scottish industrial injuries benefits, within the limits of devolved competence. Paragraph 7 of the schedule provides that eligibility for employment-injury assistance cannot be means-tested. Paragraph 14 of the schedule describes types of assistance that cannot be given as lump-sum payments, because such assistance remains a reserved matter (see above in relation to disability assistance).
Funeral expense assistance (section 34), which is assistance to an individual to help meet funeral costs that the individual has met or is responsible for meeting. Schedule 8 requires that regulations for this type of assistance define “funeral” for this purpose, and that eligibility criteria can be based, amongst other things, on where the funeral takes place, the relationship of the individual to the deceased person, and the means of either person.
Housing assistance (section 35), which is assistance to an individual to meet, or help towards meeting, housing costs. Schedule 9 requires that housing assistance be made available in two situations, while allowing for it to be made available in others. The first situation is where the Scottish Ministers have made regulations to prevent a reduction in a universal credit award due to a rented property in the social sector having more bedrooms than a household is regarded as needing. The increased amount of universal credit an individual receives as a result of those regulations may be reduced by the benefit cap. Assistance would be made available to pay the amount of that reduction. The second situation is where a person awarded universal credit is aged 18 to 21 and their age prevents them being awarded assistance with housing costs in the universal credit award. Paragraph 1(2) removes the requirement to make provision for either situation, if there is no one who could be assisted by it, for example because the universal credit age rules no longer prevent persons aged 18 to 21 from receiving assistance with housing costs.
Short-term assistance (section 36), which is assistance to help individuals in the short term. Schedule 10 requires that the Scottish Ministers make regulations providing for such assistance to be given to persons who have a change in their entitlement to assistance as described in sections 28 to 35 (i.e. any of the other assistance types under Part 2, Chapter 2), and who have asked for a review or appeal of that determination. In this way, short-term assistance will be used to continue giving assistance, for a while, to persons who have been entitled to assistance on an ongoing basis (see paragraphs 42 to 45 above), but whose entitlement has reduced or ceased by a later determination of their entitlement that is being revisited. An example would be where a person has been entitled to regular payments of disability assistance, but it is decided that their entitlement should be less. Regulations can provide for such a person to be eligible for short-term assistance while the determination is being re-determined or appealed so that during that period the person suffers no loss of income. Schedule 10 leaves scope for the Scottish Ministers to prescribe other eligibility rules for short-term assistance.