2019 No. 193
The Welfare Foods (Best Start Foods) (Scotland) Regulations 2019
Made
Laid before the Scottish Parliament
Coming into force in accordance with regulation 1(2)
The Scottish Ministers make the following Regulations in exercise of the powers conferred by section 13 of the Social Security Act 1988 F1 and section 175(4) of the Social Security Contributions and Benefits Act 1992 F2 and all other powers enabling them to do so.
In accordance with section 13(2) of the Social Security Act 1988, the Scottish Ministers have consulted the National Assembly for Wales.
1992 c.4. Section 175(4) was amended by paragraph 29(4) of schedule 3 of the Social Security Contributions (Transfer of Functions, etc.) Act 1999 (c.2).
PART 1Introduction
Citation, commencement and extentI21
1
These Regulations may be cited as the Welfare Foods (Best Start Foods) (Scotland) Regulations 2019.
2
These Regulations come into force on 12 August 2019, except regulation 21 and schedule 2 which come into force on 31 March 2020.
3
These Regulations extend to Scotland only.
PART 2General interpretation
General interpretationI32
In these Regulations—
F25“the 1992 Act” means the Social Security Administration Act 1992
“assessment period” is to be construed in accordance with regulation 21 of the Universal Credit Regulations 2013 F3,
“beneficiary” means an individual entitled to benefit as described in regulation 7 F38, 7A or 8,
“Best Start Foods” means the types of food described in column 2 of the table in schedule 1,
“child” means a person under 16 years of age or a person who is a dependant within the meaning of regulation 5,
“child tax credit” means the tax credit provided for by section 1(1)(a) of the Tax Credits Act 2002 F4,
“the 2005 Regulations” means the Healthy Start Scheme and Welfare Food (Amendment) Regulations 2005 F5,
“universal credit” means universal credit payable under Part 1 of the Welfare Reform Act 2012 F6.
PART 3Meaning of certain expressions concerning interpersonal relationships
Meaning of “partner”I43
For the purposes of these Regulations, an individual is regarded as the partner of another individual if those two individuals would be regarded as a couple for the purposes of Part 1 of the Welfare Reform Act 2012 (see section 39 of that Act F7).
Meaning of being “responsible” for a childI54
1
An individual is to be regarded as responsible for a child only if at least one of sub-paragraphs (a) to (g) applies—
a
the child is a dependant of the individual,
b
the individual is one of the child's parents and—
i
normally lives with the child,
ii
is under 20 years of age, and
iii
is a dependant of another individual,
c
d
the child is treated in law as the child of the individual by reason of an adoption either—
i
effected under the law of Scotland, or
ii
effected under the law of another country or jurisdiction and recognised by the law of Scotland,
e
the child is placed with the individual by an adoption agency,
f
the individual is a guardian of the child appointed by deed, will or by a court,
g
the individual is a kinship carer for the child.
2
In paragraph (1)(e), “adoption agency” means—
a
a local authority acting in its capacity as an adoption service provider under section 1 of the Adoption and Children (Scotland) Act 2007 F9,
b
an adoption service provided as mentioned in paragraph 8(1)(b) of schedule 12 of the Public Services Reform (Scotland) Act 2010 F10 and registered under Part 5 of that Act,
c
an adoption agency within the meaning of section 2(1) of the Adoption and Children Act 2002 F11,
d
an adoption agency within the meaning of article 3 of the Adoption (Northern Ireland) Order 1987 F12.
Meaning of “dependant”I65
1
In respect of any given week, an individual (“person A”) is to be regarded as the dependant of another individual (“person B”) only if—
a
paragraph (2) applies, or
b
in that week person B is a kinship carer for person A.
2
This paragraph applies where—
a
person B has been awarded—
i
child tax credit, child benefit or state pension credit in respect of the week in question (or for a period that includes that week), or
ii
universal credit for—
aa
an assessment period that includes the week in question, or
bb
an assessment period that ended immediately before the assessment period mentioned in paragraph (aa) started, and
b
person A is recognised to be a child for whom person B has responsibility in terms of that award of assistance.
3
It is immaterial for the purpose of this regulation that the award of assistance to person B referred to paragraph (2) does not include any amount in respect of person A due to a rule that restricts the number of dependants in respect of whom person B can be given that type of assistance.
F46Meaning of “kinship carer”5A
1
An individual is a kinship carer for a child on a day if—
a
the individual is—
i
a person who is related to the child,
ii
a person who is known to the child and with whom the child has a pre-existing relationship, or
iii
a friend or acquaintance of a person related to the child, and
b
on that day, the child lives with the individual (exclusively or predominantly) under the terms of—
i
a kinship care order as defined in section 72(1) of the Children and Young People (Scotland) Act 2014,
ii
any other order under section 11(1) of the Children (Scotland) Act 1995 (“the 1995 Act”), or
iii
an agreement between the individual, the individual’s partner or both of them and—
aa
a local authority by which the child is looked after within the meaning of section 17(6) of the 1995 Act,
bb
a local authority in England or Wales by which the child is looked after within the meaning of section 105(4) of the Children Act 1989 (“the 1989 Act”), or
cc
an authority in Northern Ireland by which the child is looked after within the meaning of article 25 of the Children (Northern Ireland) Order 1995 (“the 1995 Order”).
2
A person described in paragraph (1)(a) must not be—
a
the parent of the child within the meaning of section 15(1) of the 1995 Act,
b
a foster carer within the meaning of regulation 2 of the Looked After Children (Scotland) Regulations 2009,
c
a local authority foster parent in England and Wales within the meaning of section 105(1) of the 1989 Act, or
d
an authority foster parent in Northern Ireland within the meaning of article 27(3) of the 1995 Order.
3
In paragraph (1)(a) “related” means related either by blood, marriage or civil partnership.
PART 4Entitlement
GeneralI76
1
An individual described in regulation 7 F39, regulation 7A or regulation 8 is entitled to be paid benefit in accordance with the provisions of Part 5 of these Regulations.
F401A
Subject to regulation 11(1A)—
a
an individual described in regulation 7 is not entitled to be paid benefit where their partner described in regulation 7A is being paid benefit,
b
an individual described in regulation 7A is not entitled to be paid benefit where their partner described in regulation 7 is being paid benefit.
2
An individual is not entitled to be paid benefit under these Regulations in respect of any week in which they received, or are due to receive, benefit under the 2005 Regulations.
3
A person who is entitled to benefit under these Regulations only by virtue of payment of a kind of assistance mentioned in regulation 10(1)(h) does not cease to be so entitled until expiry of 8 weeks beginning with the day after the last day of the most recent completed assessment period for that kind of assistance.
Pregnant womenI87
1
For the purposes of regulation 6 an individual so described is—
a
a pregnant woman who—
i
is ordinarily resident in Scotland,
ii
is 18 years of age or older, and
iii
is, or is the partner or dependant of an individual who is, in receipt of a kind of assistance mentioned in regulation 10, including an individual who has been awarded a kind of assistance but has not yet received payment, or
b
a pregnant woman under 18 years of age, provided that she meets the residence requirement in regulation 9.
2
If an individual described in paragraph (1)(b) reaches the age of 18 years before the end of her pregnancy she remains entitled to benefit until the end of that pregnancy.
F36Partners of pregnant women7A
For the purposes of regulation 6 an individual so described is—
a
the partner of an individual described in regulation 7, and
b
receiving benefit for the use of the individual described in regulation 7.
ChildrenI98
1
For the purposes of regulation 6 an individual so described is—
a
a child who is—
i
under 3 years of age,
ii
for whom another individual is responsible, and
iii
that other individual is, or is the partner or dependant of another individual who is, in receipt of a kind of assistance mentioned in regulation 10, including an individual who has been awarded a kind of assistance but has not yet received payment, or
b
a child who is—
i
under one year of age, or whose first anniversary of their estimated date of delivery has not yet passed,
ii
for whom another individual is responsible, and
iii
that other individual is under 18 years of age and meets the residence requirement set out in regulation 9.
2
A child described in paragraph (1)(b) remains entitled to benefit until they are one year of age, including where the individual responsible for them has turned 18 years of age before the child's first birthday.
Residence requirementI109
1
The residence requirement is—
a
the individual is ordinarily resident in Scotland, and
b
where neither the individual, the individual's partner nor the person on whom the individual is dependent has been awarded a kind of assistance mentioned in regulation 10, the condition set out in paragraph (2) is also met.
2
The condition is that the individual is—
a
habitually resident in the United Kingdom, the Channel Islands F29or the Isle of Man,
F30aa
a person who, or has a partner who, is habitually resident in the European Economic Area or Switzerland and—
i
is a qualified person within the meaning of regulation 6(1)(a) (jobseeker), (b) (worker), (c) (self-employed person), (d) (self-sufficient person) or (e) (student) of the Immigration (European Economic Area) Regulations 2016 (the EEA Regulations);
ii
retains the status referred to in head (i) pursuant to regulation 6(2) or (4) of the EEA Regulations;
iii
is a family member of a person referred to in head (i) or (ii) within the meaning of regulation 7(1) of the EEA Regulations;
iv
has a right to reside permanently in the United Kingdom by virtue of regulation 15(1) of the EEA Regulations; or
v
has been granted indefinite or limited leave to enter, or remain in, the United Kingdom under the Immigration Act 1971 by virtue of Appendix EU to the immigration rules made under section 3(2) of that Act.
F33ab
a person who—
i
has leave to enter or remain in the United Kingdom granted under the immigration rules made under section 3(2) of the Immigration Act 1971, by virtue of—
ia
the Afghan Relocations and Assistance Policy, or
ib
the previous scheme for locally-employed staff in Afghanistan (sometimes referred to as the ex-gratia scheme),
ii
has been granted discretionary leave outside the immigration rules as a dependant of a person referred to in sub-head (i), or
iii
has leave granted under the Afghan Citizens Resettlement Scheme.
F34ac
a person who was residing in Ukraine immediately before 1 January 2022, left Ukraine in connection with the Russian invasion which took place on 24 February 2022 and—
i
has been granted leave in accordance with immigration rules made under section 3(2) of the Immigration Act 1971, F50...
ii
has a right of abode in the United Kingdom within the meaning given in section 2 of that Act,F51or
F52iii
does not require leave to enter or remain in the United Kingdom in accordance with section 3ZA of that Act,
F62ad
a person who was residing in Sudan before 15 April 2023, left Sudan in connection with the violence which rapidly escalated on 15 April 2023 in Khartoum and across Sudan and—
i
has been granted leave in accordance with immigration rules made under section 3(2) of the Immigration Act 1971,
ii
has a right of abode in the United Kingdom within the meaning given in section 2 of that Act, or
iii
does not require leave to enter or remain in the United Kingdom in accordance with section 3ZA of that Act
b
a refugee within the definition in Article 1 of the Convention relating to the status of refugees done at Geneva on 28 July 1951, as extended by article 1(2) of the protocol relating to the status of refugees done at New York on 31 January 1967,
c
d
a person who has humanitarian protection granted under rules made under section 3(2) of the Immigration Act 1971, or
e
a person who—
i
is not a person who is subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act 1999 (exclusion from benefits) F14, and
ii
is in the United Kingdom as a result of deportation, expulsion or other removal by compulsion of law from another country to the United Kingdom.
F323
In this regulation “the Afghan Citizens Resettlement Scheme” means the scheme announced by the United Kingdom Government on 18 August 2021.
Kinds of assistanceI1110
1
The kinds of assistance referred to in regulations 7 to 9 and 20 are—
a
child tax credit, where the relevant income of the individual or individuals to whom the award of child tax credit is made is determined at the time of the award not to exceed F54£18,725 per annum,
b
child tax credit and working tax credit, where—
i
the relevant income if the person or persons to whom the award of tax credit is made is determined at the time of the award not to exceed F55£8,717 or
ii
the person or persons entitled to the award is or are being treated as engaged in qualifying remunerative work by virtue of regulation 7D of the Working Tax Credit (Entitlement and Maximum Rate) Regulations 2002 F15,
c
d
income-based jobseeker's allowance,
e
income-related employment and support allowance,
f
income support,
g
state pension credit,
2
The period is—
a
the most recent complete assessment period, or
b
the assessment period immediately preceding that assessment period.
3
In this regulation—
“earned income” means a person's earned income calculated in accordance with Chapter 2 of Part 6 of the Universal Credit Regulations 2013 F17,
“housing benefit” means housing benefit provided by virtue of a scheme under section 123(1) of the Social Security Contributions and Benefits Act 1992 F18,
“relevant income” has the same meaning as in section 7(3) of the Tax Credits Act 2002 F19,
“state pension credit” means state pension credit provided for by the State Pension Credit Act 2002 F20, and
“working tax credit” means the tax credit provided for by section 1(1)(b) of the Tax Credits Act 2002.
Entitlement – further provisionI1211
1
Subject to F41paragraphs (1A) and (2), no beneficiary is entitled to benefit under these Regulations unless an application for such benefit has been approved by the Scottish Ministers.
F421A
Where the Scottish Ministers receive an application in respect of an individual described in regulation 7, and they are also in receipt of an application in respect of an individual described in regulation 7A, they must—
a
approve the application in respect of the individual described in regulation 7 in priority to the application in respect of the individual described in regulation 7A, and,
b
cease any payment of this benefit to the individual described in regulation 7A.
2
Where an individual described in regulation 7 F43, or 7A, who has responsibility for a child described in regulation 8 and that child is under 4 months of age, notifies the Scottish Ministers of the date of birth of the child, that child is entitled to benefit payable from the date of their birth.
3
If an individual described in regulations 7 F44, 7A, 8 or 20—
a
has ceased to be entitled to benefit,
b
less than 12 weeks have elapsed since they ceased to be so entitled, and
c
can demonstrate to the reasonable satisfaction of the Scottish Ministers that they are once again entitled,
then the Scottish Ministers may renew their entitlement without further process.
4
Where any provision of these Regulations requires or enables anything to be done in respect of a beneficiary and that beneficiary is a child, the provision is deemed to refer to an individual who is responsible for that child.
Change of circumstances affecting entitlement to benefitI1312
An individual who is no longer entitled to benefit under these Regulations due to a change in circumstances must inform the Scottish Ministers of that change without delay.
F37Appointment of a person to act on behalf of an individual12A
1
The Scottish Ministers may appoint a person (“an appointee”)—
a
to—
i
act on behalf of an individual described in regulation 7 or 7A in connection with the determination of that individual’s entitlement to benefit under and in accordance with these Regulations, or
ii
act on behalf of an individual responsible for a child described in regulation 8 (as read with regulation 11(4)) in connection with the determination of that child’s entitlement to benefit under and in accordance with these Regulations, and
b
to be paid benefit on the individual’s behalf.
2
The Scottish Ministers may only appoint an appointee if it appears to them that either paragraph (3) or (4) applies.
3
This paragraph applies if—
a
the individual is deceased, and
b
there is no executor appointed on the individual’s estate.
4
This paragraph applies if, in relation to the matters mentioned in paragraph (1)—
a
the individual is incapable within the meaning of the Adults with Incapacity (Scotland) Act 2000,
b
there is no guardian acting or appointed under that Act,
c
the individual’s estate is not being administered by a judicial factor, and
d
there is no other person who has authority to act on behalf of the individual and is willing to do so.
5
An individual who is under 16 years may not be appointed as an appointee.
6
Where an appointee is appointed in relation to an individual—
a
the appointee can do anything that the individual could do in connection with the determination of the individual’s entitlement to benefit (including making an application for benefit),
b
the Scottish Ministers may request that the appointee provide them with information that they may otherwise request from the individual in connection with the determination of the individual’s entitlement to benefit,
c
any information that would be given to the individual by virtue of these Regulations must be given to the appointee instead.
7
The Scottish Ministers may terminate an appointment under this regulation at any time.
8
The Scottish Ministers must consider whether to terminate an appointment made by virtue of paragraph (3) if requested to do so by anyone who appears to the Ministers to have an interest in the financial affairs of the individual.
9
The Scottish Ministers must consider whether to make an appointment by virtue of paragraph (4), or to terminate such an appointment, if requested to do so by—
a
the individual, or
b
anyone else who appears to the Ministers to—
i
have authority to act on behalf of the individual, or
ii
have an interest in the welfare or financial affairs of the individual.
10
Paragraph (11) applies where the Scottish Ministers are deciding whether to make an appointment by virtue of paragraph (4) or to terminate such an appointment.
11
In making the decision, the Scottish Ministers must, insofar as practicable, have regard to—
a
the wishes and feelings of the individual, and
b
the views of anyone else who appears to the Ministers to have an interest in the welfare or financial affairs of the individual.
12
A person appointed by the Scottish Ministers under and in accordance with section 85B of the 2018 Act may be treated by them as an appointee of—
a
an individual described in regulation 7 or 7A, or
b
a person who is responsible for an individual described in regulation 8,
in connection with the determination of the individual’s entitlement to benefit under these Regulations.
13
In respect of decisions in relation to appointees for the purposes of this regulation, the Scottish Ministers must act in accordance with guidelines prepared for the purposes of section 85C of the 2018 Act as if the references in those guidelines to appointments under section 85B of that Act were references to appointments under these Regulations.
14
A person appointed under this regulation must have regard to any guidance issued by the Scottish Ministers about the way in which the role of appointee should be carried out.
15
In this regulation, “the 2018 Act” means the Social Security (Scotland) Act 2018.
PART 5Benefit to be given
Value of benefitI1413
1
2
The benefit to which a child described in regulation 8(1)(a) is entitled is credit for Best Start Foods to the value of—
a
F59£9.90 for each week that the child is so entitled until the child has reached the age of one year, or has reached the first anniversary of their estimated date of delivery, whichever occurs later,
b
F60£4.95 for each week thereafter that the child is so entitled until the child has reached the age of 3 years.
3
The benefit to which a child described in regulation 8(1)(b) is entitled is credit for Best Start Foods to the value of F61£9.90 for each week that the child is so entitled.
4
A child who is entitled to Best Start Foods is entitled to the full amount of credit for the week in which they reach the age of 3 years.
Form in which benefit is givenI1514
The credit mentioned in regulation 13 is to be given in the form of a payment card.
Supporting breastfeedingI1615
Credit issued to a beneficiary who is a breastfed child may be used by the breastfeeding mother to purchase Best Start Foods for consumption by her.
Property in payment cardI1716
1
Every payment card is the property of the Scottish Ministers.
2
Any person in possession of a payment card must, if requested to do so by the Scottish Ministers, produce or deliver the card within such time and to such place as the Scottish Ministers may specify.
PART 6Application of enactments and offences
Application of enactments - offencesI1817
1
Section 112 (false representation for obtaining benefit) and section 113 (breach of regulations) of F26the 1992 Act have effect, for the purposes of the administration of the scheme provided for by these Regulations, subject to the modifications in paragraph (2).
2
The modifications are—
a
section 112(1) of the 1992 Act is to be read as if—
i
in subsection (1)—
aa
“or other payment” were omitted,
bb
“the relevant social security legislation” were substituted by “a scheme made under section 13 of the Social Security Act 1988”,
cc
“that legislation” were a reference to “such a scheme”, and
ii
subsections (1A) to (1F) were omitted.
b
section 113 is to be read as if, after subsection (1A)(a) there is inserted—
aa
section 13 of the Social Security Act 1988 F27or subordinate legislation made, or having effect as if made, under it;
Further offencesI19F2418
1
For the purposes of section 13(9) of the Social Security Act 1988, it is directed that section 113 of the 1992 Act has effect as if paragraph (2) had been made under it, subject to the modification in paragraph (3).
2
A person who fails to comply with regulation 12 or regulation 16(2) is guilty of an offence under these Regulations.
3
Section 113(3) of the 1992 Act has effect as if paragraph (b) were omitted.
PART 7Amendments, transitional arrangements and revocations
Amendment to the Healthy Start Scheme and Welfare Food (Amendment) Regulations 2005I2019
1
The Healthy Start Scheme and Welfare Food (Amendment) Regulations 2005 F21 are amended as follows.
2
In regulation 4 (claim for benefit), after paragraph (1) insert—
1A
No application for a claim for benefit under this regulation may be made on or after 12 August 2019.
Transitional arrangementsI2120
1
The benefit to which a child described in this regulation is entitled is credit for Best Start Foods.
2
For the purposes of this regulation a child so described is a child—
a
who is under 4 years of age,
b
who was 2 years of age or over at the date of application,
c
who was in receipt of benefit under the 2005 Regulations, as they apply to Scotland, either—
i
at the date of application, or
ii
less than 12 weeks prior to the date of application, and
d
for whom an individual described in paragraph (3) is responsible.
3
For the purposes of paragraph (2) the individual—
a
is, or is the partner or dependant of an individual who is, in receipt a kind of assistance mentioned in regulation 10, including an individual who has been awarded a kind of assistance but has not yet received payment, and
b
made an application under these Regulations on or before the 31 March 2020.
4
The benefit to which a child described in this regulation is entitled is credit for Best Start Foods to the value of F31£4.50 per week for each week that the child is entitled until the child has reached 4 years of age.
5
For the purposes of this regulation, “date of application” means the date on which an application made under these Regulations is received by the Scottish Ministers.
RevocationsI2321
The instruments listed in column 1 of the table in schedule 2 are revoked to the extent specified in the corresponding entry in column 3 of that table.
I22SCHEDULE 1BEST START FOODS
Sch. 1 in force at 12.8.2019, see reg. 1(2)
Words in sch. 1 Table omitted (22.2.2020) by virtue of The Foods for Specific Groups (Infant Formula and Follow-on Formula) (Scotland) Regulations 2020 (S.S.I. 2020/6), regs. 1(1), 7(2)
Column 1Category of food | Column 2Type of food |
|---|---|
Milk | Plain liquid cow's milk, including long life, pasteurised or ultra-heat treated varieties of milk, but not milk to or from which chemicals, vitamins, flavours or colours have been added or removed. |
First infant formula milk | F22F23Infant formula based on cow's or goat's milk intended for particular nutritional use from birth by infants in good health F28.... |
Fruit and vegetables | Fresh, frozen or canned fruit or vegetables, including loose, pre-packed, whole, sliced, chopped, or mixed fruit or vegetables, but not fruit or vegetables to which fat, salt, sugar, flavouring or any other ingredient has been added. |
Pulses | Fresh, dried or canned pulses, including but not limited to lentils, beans, peas and barley, but not those to which fat, salt, sugar, flavouring or any other ingredient has been added. |
Eggs | Fresh eggs |
I1SCHEDULE 2REVOCATIONS
Sch. 2 in force at 31.3.2020, see reg. 1(2)
Column 1Instrument revoked | Column 2Reference | Column 3Extent of revocation |
|---|---|---|
The Healthy Start Scheme and Welfare Food (Amendment) Regulations 2005 | S.I. 2005/3262 | Regulations 3, 4, 5(2), 5A, 6, 7, 7A, 8, 8A, 9(4)(c), 10, 17, 18 and schedule 2 |
The Healthy Start Scheme and Welfare Food (Amendment No. 2) Regulations 2006 | S.I. 2006/2818 | Regulations 4, 5, 6, 7 and 8 |
The Healthy Start Scheme and Welfare Food (Amendment) Regulations 2008 | S.I. 2008/408 | The whole Regulations |
The Employment and Support Allowance (Consequential Provisions) (No. 3) Regulations 2008 | S.I. 2008/1879 | Regulation 10(3) and 10(4) |
The Healthy Start Scheme and Welfare Food (Amendment) Regulations 2009 | S.I. 2009/295 | The whole Regulations |
The Healthy Start Scheme and Welfare Food (Amendment) Regulations 2010 | S.I. 2010/434 | The whole Regulations |
The National Treatment Agency (Abolition) and the Health and Social Care Act 2012 (Consequential, Transitional and Saving Provisions) Order 2013 | S.I. 2013/235 | Paragraph 91(3) of schedule 2 |
The Healthy Start Scheme and Welfare Food (Amendment) Regulations 2016 | S.I. 2016/985 | The whole Regulations |
The Healthy Start Scheme and Welfare Food (Miscellaneous Amendments) Regulations 2017 | S.I. 2017/1032 | Regulation 2 |
1988 c.7. Section 13 was substituted by section 185(1) of the Health and Social Care (Community Health and Standards) Act 2003 (c.43) and amended by section 27(5) of the Scotland Act 2016 (c.11) (“the 2016 Act”). The functions of the Secretary of State were transferred to the Scottish Ministers by virtue of section 53 of the Scotland Act 1998 (c.46) as read with section 32 of the 2016 Act.