Part 5 – Appointees
Section 15: Power to make provision in relation to appointments made by a Minister of the Crown
78.Section 85A of the 2018 Act allows the Scottish Ministers to appoint a person to act on behalf of a child in connection with the determination of their entitlement to assistance under section 24 or regulations made under section 79 of the 2018 Act, and where appropriate to receive that assistance on the child’s behalf. Section 85B makes similar provision regarding appointments on behalf of adults regarded as incapable within the meaning of the Adults with Incapacity (Scotland) Act 2000, on behalf of deceased individuals, and on behalf of adults in other circumstances set out in section 85B(4). UK Ministers have several similar powers of appointment in respect of benefits administered by the UK Department of Work and Pensions.
79.Section 15 of the Act inserts a new section 85F into the 2018 Act, giving a regulation-making power to the Scottish Ministers to provide that a person appointed by a UK Minister to act on behalf of an individual who is or may be eligible to receive assistance under the 2018 Act is to be treated as though appointed by the Scottish Ministers under section 85A or 85B to act on that individual’s behalf. This regulation-making power is subject to the affirmative procedure.
80.Subsection (3) of inserted section 85F sets out that the regulations must provide that where an individual is or may be eligible to receive a specified form of assistance, the Scottish Ministers must, as soon as reasonably practicable, consider whether the conditions for making an appointment under section 85A or 85B are met; consider whether to terminate the UK appointment; and if they do so, make their own appointment of a representative under section 85A or 85B.
Section 16: Liability of appointees under sections 85A and 85B of the 2018 Act
81.This section of the Act inserts a new section 85G into the 2018 Act on the liability of persons appointed to act on behalf of an individual in receipt of social security assistance under sections 85A, 85B or 85F. Where an appointee uses any funds of the individual for whom the appointee is acting in breach of the appointee’s common law fiduciary duty of good financial management, in breach of the appointee’s common law duty of care towards the individual, or outwith the appointee’s statutory authority under section 85A or 85B, the appointee is liable to repay those funds to the individual.
82.However as per subsection (2) of inserted section 85G the appointee is not liable under subsection (1) for any breach as described in subsection (1) where the appointee has acted reasonably and in good faith, or where the appointee has failed to act and that failure was reasonable and in good faith.
