The Social Security (Miscellaneous Amendment and Transitional Provision) (Scotland) Regulations 2022

Amendment of the Early Years Assistance (Best Start Grants) (Scotland) Regulations 2018

2.—(1) The Early Years Assistance (Best Start Grants) (Scotland) Regulations 2018(1) are amended in accordance with paragraphs (2) to (6).

(2) In regulation 9 (meaning of being responsible for a child)—

(a) in paragraph (1)(c), after “section 54” insert “or section 54A”,

(b) for paragraph (3) substitute—

“(3) For the purpose of paragraph (1)(g), 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(2),

(ii) any other order under section 11(1) of the Children (Scotland) Act 1995 (“the 1995 Act”)(3), 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(4),

(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”)(5), 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”)(6).

(4) A person described in paragraph (3)(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(7),

(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.

(5) In paragraph (3)(a) “related” means related either by blood, marriage or civil partnership.”.

(3) In schedule 1 (procedural matters), Part 2 (determination without application), after paragraph 5 (determination following backdated award of assistance) insert—

“Determination following award of Scottish child payment

5A.— (1) The Scottish Ministers are to make a determination of an individual’s entitlement to an early learning grant or a school-age grant in connection with a child (without receiving an application) where the circumstances described in sub-paragraph (2) are met.

(2) The circumstances referred to in sub-paragraph (1) are that—

(a) a determination has been made that the individual is entitled to a Scottish child payment in respect of the child and the individual has an ongoing entitlement to that payment by virtue of regulation 19 of the Scottish Child Payment Regulations,

(b) the individual’s Scottish child payment in respect of the child is not currently suspended within the meaning of regulation 19G(a) of the Scottish Child Payment Regulations, and

(c) it appears to the Scottish Ministers from the available information that the individual is likely to be entitled to an early learning grant or a school-age grant in respect of the child.

(3) Where a determination is to be, or has been, made without an application by virtue of this paragraph, references in these Regulations to the day the application is made are to be read as references to the day the determination is made.

(4) Where an individual who is entitled to a Scottish child payment requests that the Scottish Ministers do not make a determination (without receiving an application) of the individual’s entitlement to an early leaning grant or school-age grant—

(a) the Scottish Ministers are not to make a determination (without receiving an application) under sub-paragraph (1), and

(b) accordingly, their duty to do so under sub-paragraph (1) ceases to apply.

(5) In this paragraph—

(a) “Scottish child payment” means Scottish child payment assistance given in accordance with the Scottish Child Payment Regulations,

(b) “Scottish Child Payment Regulations” means the Scottish Child Payment Regulations 2020(8), and

(c) “the available information” means—

(i) the information provided in the individual’s application for the Scottish child payment,

(ii) any other information obtained by the Scottish Ministers in connection with that application, and

(iii) any other information available to them that is relevant to their consideration of whether the individual is entitled to an early learning grant or a school-age grant.”.

(4) In schedule 2 (pregnancy and baby grant)—

(a) in paragraph 1 (eligibility)—

(i) at the end of sub-paragraph (d)(iv) insert “and”,

(ii) at the end of sub-paragraph (e)(iv)(bb) omit “and”, and

(iii) omit sub-paragraph (f),

(b) in paragraph 4 (residence requirement)—

(i) in sub-paragraph (2)(ab)(i) before “leave” insert “has”,

(ii) at the end of sub-paragraph (2)(ac)(i) omit “or”,

(iii) at the end of sub-paragraph (2)(ac)(ii) for “;” substitute “, or”, and

(iv) after sub-paragraph (2)(ac)(ii) insert—

“(iii) does not require leave to enter or remain in the United Kingdom in accordance with section 3ZA of that Act,”,

(c) in paragraph 6 (the basic amount)—

(i) for sub-paragraph (2)(b)(v) substitute—

“a child for whom neither the individual nor their partner is responsible,”,

(ii) after sub-paragraph (2)(b)(v) insert—

“(vi) a child in any one of the circumstances described in sub-paragraph (4), (5) or (6)”, and

(iii) after sub-paragraph (3) insert—

“(4) The circumstance referred to in sub-paragraph (2)(b)(vi) is that—

(a) the child mentioned in sub-paragraph (2)(b)(vi) was, at the time of that child’s birth, not a child of the—

(i) individual to whom the grant is to be given, or

(ii) individual’s partner (where the individual has a partner on the day the application is made), and

(b) the individual first became responsible for the child mentioned in sub-paragraph (2)(b)(vi) when that child was aged 12 months or older.

(5) The circumstance referred to in sub-paragraph (2)(b)(vi) is that the individual to whom the grant is to be given has left their home with the child mentioned in sub-paragraph (2)(b)(vi) due to domestic abuse.

(6) The circumstance referred to in sub-paragraph (2)(b)(vi) is that—

(a) the child mentioned in sub-paragraph (2)(b)(vi) was born before the individual to whom the grant is to be given arrived in the United Kingdom, and

(b) the individual to whom the grant is to be given is one of the following—

(i) a person who 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(9) (“the 1971 Act”) by virtue of—

(aa) the Afghan Relocations and Assistance Policy, or

(bb) the previous scheme for locally-employed staff in Afghanistan (sometimes referred to as the ex-gratia scheme),

(ii) a person who has been granted discretionary leave outside the immigration rules as a dependant of a person referred to in sub-head (i),

(iii) a person who has leave granted under the Afghan Citizens Resettlement Scheme,

(iv) a person with leave to enter or remain in the United Kingdom granted under or outside the immigration rules made under section 3(2) of the 1971 Act, or with a right of abode in the United Kingdom within the meaning of section 2 of that Act or who does not require leave to enter or remain in the United Kingdom in accordance with section 3ZA of the Act, where the person—

(aa) was residing in Ukraine immediately before 1 January 2022, and

(bb) left Ukraine in connection with the Russian invasion which took place on 24 February 2022,

(v) 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, or

(vi) a person who has humanitarian protection granted under the rules made under section 3(2) of the 1971 Act.

(7) In paragraph (6) “the Afghan Citizens Resettlement Scheme” has the same meaning as in paragraph 4.”,

(d) after paragraph 10 (meaning of “sure start maternity grant”) insert—

“Meaning of “domestic abuse”

11.— (1) Subject to sub-paragraph (3), in this schedule, “domestic abuse” means abusive behaviour within the meaning of sections 2 and 3 of the Domestic Abuse (Protection) (Scotland) Act 2021(10) (“the 2021 Act”).

(2) For the purposes of this schedule, sections 2 and 3 of the 2021 Act apply as if—

(a) references to “person A” were references to the partner or the ex-partner of the individual to whom the grant is to be given, and

(b) references to “person B” were references to the individual to whom the grant is to be given.

(3) Sub-paragraphs (4) to (13) have effect until the day on which sections 2 and 3 of the 2021 Act come into force.

(4) “Abusive behaviour” means behaviour by the partner or ex-partner of the individual to whom the grant is to be given (“person A”) which is abusive of the individual to whom the grant is to be given (“person B”).

(5) Behaviour by person A is abusive of person B if a reasonable person would consider the behaviour to be likely to cause person B to suffer physical or psychological harm.

(6) Behaviour is behaviour of any kind, including (for example)—

(a) saying or otherwise communicating as well as doing something,

(b) intentionally failing—

(i) to do something,

(ii) to say or otherwise communicate something.

(7) Behaviour directed at a person is such behaviour however carried out, including (in particular)—

(a) by way of conduct towards property,

(b) through making use of a third party,

as well as behaviour in a personal or direct manner.

(8) In sub-paragraph (5), the reference to psychological harm includes fear, alarm and distress.

(9) Behaviour may consist of a single incident or a course of conduct.

(10) Behaviour which is abusive of person B includes (in particular)—

(a) behaviour directed at person B that is violent, threatening or intimidating,

(b) behaviour directed at person B, at a child of person B or at another person that either—

(i) has its purpose (or among its purposes) one or more of the relevant effects set out in sub-paragraph (11), or

(ii) would be considered by a reasonable person to be likely to have one or more of the relevant effects set out in sub-paragraph (11).

(11) The relevant effects are of—

(a) making person B dependent on, or subordinate to, person A,

(b) isolating person B from friends, relatives or other sources of support,

(c) controlling, regulating or monitoring person B’s day-to-day activities,

(d) depriving person B of, or restricting person B’s, freedom of action,

(e) frightening, humiliating, degrading or punishing person B.

(12) In sub-paragraph (10)(a), the reference to violent behaviour includes sexual violence as well as physical violence.

(13) Person A and person B are partners (and “ex-partners” is to be construed accordingly) if they are—

(a) spouses or civil partners of each other, or

(b) in an intimate personal relationship with each other.”.

(5) In schedule 3 (early learning grant)—

(a) in paragraph 1 (eligibility)—

(i) at the end of sub-paragraph (e) insert “and”,

(ii) at the end of sub-paragraph (f)(iv)(bb) omit “and”, and

(iii) omit sub-paragraph (g), and

(b) in paragraph 3 (residence requirement)—

(i) at the end of sub-paragraph (2)(ac)(i) omit “or”,

(ii) at the end of sub-paragraph (2)(ac)(ii) substitute “;” for “, or”,

(iii) after sub-paragraph (2)(ac)(ii) insert—

“(iii) does not require leave to enter or remain in the United Kingdom in accordance with section 3ZA of that Act,”.

(6) In schedule 4 (school-age grant)—

(a) in paragraph 1 (eligibility)—

(i) at the end of sub-paragraph (e) insert “and”,

(ii) at the end of sub-paragraph (f)(iv)(bb) omit “and”, and

(iii) omit sub-paragraph (g), and

(b) in paragraph 4 (residence requirement)—

(i) at the end of sub-paragraph (2)(ac)(i) omit “or”,

(ii) at the end of sub-paragraph (2)(ac)(ii) insert “or”,

(iii) after sub-paragraph (2)(ac)(ii) insert—

“(iii) does not require leave to enter or remain in the United Kingdom in accordance with section 3ZA of that Act,”.

(1)

S.S.I. 2018/370, amended by S.S.I. 2019/110, S.S.I. 2019/157, S.S.I. 2020/399, S.S.I. 2021/170, S.S.I. 2021/320, S.S.I. 2021/469, S.S.I. 2021/494, S.S.I. 2022/108 and S.S.I. 2022/129.

(2)

2014 asp 8.

(3)

1995 c. 36.

(4)

Section 17(6) was amended by paragraph 9(4) of schedule 2 of the Adoption and Children (Scotland) Act 2007 (asp 4), paragraph 2(4) of schedule 5 of the Children’s Hearings (Scotland) Act 2011 (asp 1), and S.S.I. 2013/211.

(5)

1989 c. 41. Section 105(4) was substituted by S.I. 2016/413.

(6)

S.I. 1995/755 (N.I. 2). Article 25 was amended by section 2(1) of the Children (Leaving Care) Act (Northern Ireland) 2002 (c. 11).

(7)

S.S.I. 2009/210, to which there are amendments not relevant to these Regulations.

(8)

S.S.I. 2020/351, amended by S.S.I. 2021/16, S.S.I. 2021/494, and S.S.I. 2022/41.

(9)

1971 c. 77. See Part 7 of the Immigration Rules; the relevant rules are rules 276BA1 – 276BS2.

(10)

S.S.I. 2019/193, amended by S.S.I. 2019/232, S.S.I. 2020/6, S.S.I. 2020/399, S.S.I. 2021/221, S.S.I. 2021/320, S.S.I. 2022/108, S.S.I. 2022/129 and S.S.I. 2022/167.