Early Years Assistance, Consultation on the Best Start Grant Regulations

We consider there is an issue around the lack of a definition of what is meant by ‘habitual residence’ for the residence test aspect of the BSG.
We note at paragraph 29 you state - ‘ ...to be eligible an applicant’s main home must be in Scotland and their intention is to continue living there. They must also be entitled to be living in Scotland. In practice, residents will usually already been established in relation to the qualifying benefit(s) and for many people this will be sufficient to establish Scottish residence.’
We would wish to clarify whether the intention is to simply accept that those claimants in receipt of a qualifying benefit will automatically satisfy the habitual residence test in Scotland or will they require to satisfy a Scottish habitual residence test in addition?
This is most relevant where there will be claimants who have newly moved to Scotland and may be in receipt of a qualifying benefit elsewhere in the UK - will this be accepted as the claimant automatically satisfying the Scottish habitual residence test?
We further note that you state (at paragraph 29) that for a small number of BSG applicants who are under 18 and not required to be on a qualifying benefit, you will need to make provision for a separate residence test.
What that separate test will be is not specified in the draft regulation and we would seek clarification on what is intended. For example, are the Scottish Government intending to import the ‘habitually resident in fact’ principles/test from the UK Social Security scheme (which includes a requirement that the claimant must have an ‘appreciable period’ of actual residence that the Department for Work and Pensions (DWP), in our experience, can determine as 3 months from the beginning of residence in the UK)?
We submit it is important to also point out that for certain UK children benefits (i.e. Child Benefit/Child Tax Credit) there is no habitual residence requirement but an ‘ordinary residence’ requirement. Also there is no habitual residence requirement for the SSMG. We would seek clarification on why the Scottish government consider the potentially more onerous habitual residence test should be imported to the BSG. We believe such importation could lead to an additional barrier to the BSG for already hard pushed parents.
In effect, we would seek to persuade the Scottish government to import the ‘ordinary residence’ test as used in the UK system as we believe it would be sufficient in order to satisfy Scottish residence for BSG claimants. The Courts have determined a claimant is ‘ordinarily resident’ in a country if they are living there for a settled purpose for the time being [R v Barnet London Borough Council ex parte Shah [1983] 2 AC 309] which, in our opinion, would be sufficient to set the required residence standard for BSG.

We would like to express a preference for the ‘Test 2’ (i.e. based on entitlement to either UC, CTC or CB and with a general exception for those who ‘cannot get’ these benefits to become so entitled), as we consider –
 Test 2 is manifestly simpler (and therefore, in theory, simpler to apply/administer), will do what it needs to do (i.e. identify whether a claimant has responsibility for a child or not) and be less intrusive than Test 1 (i.e. not of necessity require claimants to provide evidence of kinship care order etc);
 it would capture all of the claimants that would be captured by Test 1 but also extend potential entitlement to other claimants who do have responsibility for a child who would not be caught by Test 1 (e.g. kinship carers who look after children on an informal basis; that is, not as per a formal kinship care order);
 the tiered approach proposed (i.e. child listed on CTC or UC award; if not, in receipt of CB; if not, where a claimant has responsibility for child but that child is not listed in CTC/UC award or in receipt of either CB) would be a reasonable/sensible approach for the reasons given in the consultation document;
 it would be worthwhile the Scottish government consulting with partners in developing guidance for Agency decision makers on how the exception should be applied/what evidence requirements are to be placed on claimants in such cases.

We would endorse this approach as we consider it will allow for more claimants with monthly variations in UC to become entitled to the BSG.
We would like to highlight, however, the potential complication the new surplus earnings rule for UC (introduced on 11/4/18) may bring to the mix regarding this proposal. The new rule seeks to ‘level out’ fluctuating earnings for the purpose of assessing UC income but has been widely criticised for not being fit for purpose, most notably by the Social Security Advisory Committee (SSAC) in their report ‘Surplus earnings: SSAC report and government statement on the Universal Credit (Miscellaneous Amendments, Saving and Transitional Provision) Regulations 2018’, a copy of which you can access here https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/675908/uc-regs-si-2018-65-surplus-earnings-ssac-report.pdf.
One of the main contentious aspects of the policy is that it requires UC claimants with fluctuating earnings to make repeated ‘bound to fail’ claims for UC in order to ‘erode’ a surplus earnings addition. The rule is complex/difficult to understand and, as stressed by the SSAC, is likely to put off claims for UC/disadvantage UC claimants with fluctuating earnings.

We consider that young parents aged 18 and 19 who do not receive a qualifying benefit in their own right because they are in training and non-advanced education should be able to claim the BSG independently/themselves and should not be dependent on parents/carers making claims for them on their behalf.
We consider that it would not be unduly onerous or in breach of data protection for the Agency to confirm with the DWP that a person (i.e. parent/carer) is claiming benefit for that 18/19 year old without that carer’s/parent’s personal details being disclosed. This would be a simple verification check which would then trigger (what we would propose) an exclusion within the regulations for said 18/19 year old to be in receipt of a qualifying benefit in order to satisfy the financial requirement for the BSG.
If it is still felt that there is a data protection issue with the above proposal we consider that it would be possible for the Agency to ascertain from the evidence/facts given by the claimant (or by the education/training provider in question) that, on the balance of probabilities, s/he would be unable to claim a qualifying benefit on her/his own because they are in ‘relevant education/training’.