PART 4SEntitlement

GeneralS

6.—(1) An individual described in regulation 7 , [F17A, 7B or 8] is entitled to be paid benefit in accordance with the provisions of Part 5 of these Regulations.

[F2(1A) Subject to regulation 11(1A) to (1C), an individual described in regulation 7, regulation 7A or regulation 7B is not entitled to be paid benefit where another individual is being paid benefit in respect of the same pregnancy.]

(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.

[F3(4) A person who is entitled to benefit under these Regulations by virtue of payment of a kind of assistance mentioned in regulation 10(1)(a) to (g) does not cease to be so entitled until the expiry of 8 weeks beginning with the day after the last day on which the person is entitled to that kind of assistance.]

Textual Amendments

Commencement Information

I1Reg. 6 in force at 12.8.2019, see reg. 1(2)

Pregnant womenS

7.—(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 F4... 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

[F5(b)a pregnant woman who is—

(i)under 18 years of age, or

(ii)a dependant (within the meaning of regulation 5) who is 18 or 19 years of age,

and meets the residence requirement in regulation 9.]

[F6(2) If an individual described in paragraph (1)(b) reaches the age of 18 years or ceases to be a dependant before the end of their pregnancy, the individual remains entitled to benefit until the end of the pregnancy.]

Textual Amendments

Commencement Information

I2Reg. 7 in force at 12.8.2019, see reg. 1(2)

[F7Partners of pregnant womenS

7A.—(1) For the purposes of regulation 6 an individual so described is—

(a)an individual who—

(i)is the partner of a pregnant woman,

(ii)is, or the pregnant woman mentioned in head (i) is, in receipt of a kind of assistance mentioned in regulation 10, including a person who has been awarded a kind of assistance but has not yet received payment,

(iii)is 18 years of age or over,

(iv)ordinarily resident in Scotland, and

(v)is receiving benefit for the use of the pregnant woman mentioned in head (i), or

(b)an individual who is—

(i)the partner of a pregnant woman,

(ii)either—

(aa)under 18 years of age, or

(bb)a dependant (within the meaning of regulation 5) who is 18 or 19 years of age, and

(iii)receiving benefit for the use of the pregnant woman mentioned in head (i).

(2) The individual described in paragraph (1)(b) must meet the residence requirement in regulation 9.

(3) If an individual mentioned in paragraph (1)(b) reaches the age of 18 years or ceases to be a dependant before the end of their partner’s pregnancy, the individual remains entitled to benefit until the end of that pregnancy.]

Textual Amendments

[F8Other entitled individuals in respect of a pregnant womanS

7B.—(1) For the purposes of regulation 6 an individual so described is—

(a)the individual that a pregnant woman as described in regulation 7(1)(b) is a dependant of, or

(b)the partner of the individual described in sub-paragraph (a),

who is receiving benefit for the use of the pregnant woman.

(2) The individual described in paragraph (1) must meet the residence requirement in regulation 9.

(3) If the pregnant woman is no longer a dependant of the individual described at paragraph (1)(a) before the end of their pregnancy, that individual or their partner remains entitled to benefit until the end of that pregnancy.]

Textual Amendments

[F9ChildrenS

8.—(1) For the purposes of regulation 6 an individual so described is—

(a)a child who is under 3 years of age, and—

(i)for whom another individual is responsible, and

(ii)the individual responsible for the child, or the partner of that individual, is—

(aa)in receipt of a kind of assistance mentioned in regulation 10, including where the individual or their partner has been awarded a kind of assistance but has not yet received payment, and

(bb)ordinarily resident in Scotland, or

(b)a child who is under 3 years of age—

(i)for whom another individual is responsible, and

(ii)the individual responsible for the child, or the partner of that individual—

(aa)is under 18 years of age,

(bb)is a dependant (within the meaning of regulation 5) who is 18 or 19 years of age,

(cc)was previously entitled to benefit by virtue of regulation 7(1)(b) or 7A(1)(b) in respect of a pregnancy which resulted in the birth of the child, or

(dd)was previously entitled to benefit by virtue of regulation 7(1)(b) or 7A as they applied immediately before 26 February 2024, in respect of a pregnancy whilst resulted in the birth of the child,

and meets the residence requirement in regulation 9.

(2)  Where the individual responsible for the child mentioned in paragraph (1)(b), or the partner of that individual, turns 18 years of age or ceases to be a dependant, that child remains entitled to benefit until the later of—

(a)the day on which the child turns one year of age,

(b)the first anniversary of their estimated date of delivery, or

(c)the day on which the individual responsible for them, or their partner, turns 18 years of age or ceases to be a dependant.]

Textual Amendments

Commencement Information

I3Reg. 8 in force at 12.8.2019, see reg. 1(2)

Residence requirementS

9.—(1) The residence requirement is—

(a)the individual is ordinarily resident in Scotland, and

(b)where neither [F10the individual nor the individual’s partner] 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 [F11or the Isle of Man],

[F12(aa)a person who, or has a partner who, is habitually resident in the European Economic Area or Switzerland and 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,]

[F13(ab)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.]

[F14(ac)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, F15...

(ii)has a right of abode in the United Kingdom within the meaning given in section 2 of that Act,] [F16or]

[F17(iii)does not require leave to enter or remain in the United Kingdom in accordance with section 3ZA of that Act,]

[F18(ad)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]

[F19(ae)a person in Great Britain who was residing in Israel, the West Bank, the Gaza Strip, East Jerusalem, the Golan Heights or Lebanon immediately before 7 October 2023, left Israel, the West Bank, the Gaza Strip, East Jerusalem, the Golan Heights or Lebanon in connection with the Hamas terrorist attack in Israel on 7 October 2023 or the violence which rapidly escalated in the region following the attack 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)a person who has been granted, or who is deemed to have been granted, leave outside the rules made under section 3(2) of the Immigration Act 1971 M1, F20...

(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) M2, 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.

[F21(3) In this regulation “the Afghan Citizens Resettlement Scheme” means the scheme announced by the United Kingdom Government on 18 August 2021.]

Textual Amendments

Commencement Information

I4Reg. 9 in force at 12.8.2019, see reg. 1(2)

Marginal Citations

Kinds of assistanceS

10.—(1) The kinds of assistance referred to in regulations 7 to 9 and 20 are—

[F22(a)child tax credit,

(b)working tax credit,

(c)housing benefit,

(d)income-based jobseeker’s allowance,

(e)income-related employment and support allowance,

(f)income support,

(g)state pension credit,

(h)universal credit in the period specified in paragraph (2).]

(2) The period is—

(a)the most recent complete assessment period, or

(b)the assessment period immediately preceding that assessment period.

[F23(2A) An individual is not to be regarded as having been awarded a kind of assistance for a day or a period if—

(a)the award was made in error (whether or not induced by the individual), or

(b)the sum awarded to the individual for the day or period is £0.

(2B) In paragraph (2A)(b), the reference to “the sum awarded” means, in a case where a deduction has been made—

(a)in respect of any liability the individual has to another person, or

(b)by way of sanction,

the sum that would have been awarded had the deduction not been made.]

(3) In this regulation—

F24...M3

“housing benefit” means housing benefit provided by virtue of a scheme under section 123(1) of the Social Security Contributions and Benefits Act 1992 M4,

[F25“income-based jobseeker’s allowance” means income-based jobseeker’s allowance within the meaning of the Jobseekers Act 1995,

“income-related employment and support allowance” means income-related employment and support allowance payable under Part 1 of the Welfare Reform Act 2007,

“income support” means income support payable under Part 7 of the Social Security Contributions and Benefits Act 1992,]

F24...M5

F24...M6

“working tax credit” means the tax credit provided for by section 1(1)(b) of the Tax Credits Act 2002.

Textual Amendments

Commencement Information

I5Reg. 10 in force at 12.8.2019, see reg. 1(2)

Marginal Citations

M41992 c.4. Section 123(1) was relevantly amended by paragraph 1(1) of schedule 9 of the Local Government Finance Act 1992 (c. 14).

M52002 c.21. Part 1 of the Tax Credits Act 2002 is repealed by schedule 14 of the Welfare Reform Act 2012, subject to the savings provided for by article 3 of S.I. 2019/167.

Entitlement – further provisionS

11.—(1) Subject to [F26paragraphs (1A) and (2)] [F27and regulation 18B] , no beneficiary is entitled to benefit under these Regulations unless an application for such benefit has been approved by the Scottish Ministers.

[F28(1A) This paragraph applies where the Scottish Ministers receive an application in respect of an individual described in regulation 7, and they are also in receipt of—

(a)an application in respect of an individual described in regulation 7A or an individual described in regulation 7B,

(b)an application in respect of an individual described in regulation 7A and an individual described in regulation 7B, or

(c)applications in respect of two or more individuals described in regulation 7B,

and each application relates to the same pregnancy.

(1B) Where paragraph (1A) applies, the Scottish Ministers must—

(a)approve the application in respect of the individual described in regulation 7 in priority to any application made in respect of an individual described in regulation 7A or 7B, and

(b)cease any payment of this benefit to the individual described in regulation 7A or regulation 7B.

(1C) Where—

(a)the Scottish Ministers receive an application in respect of—

(i)an individual described in regulation 7A and they are also in receipt of an application in respect of an individual described in regulation 7B, or

(ii)an individual described in regulation 7B and are also in receipt of an application in respect of at least one other person described in regulation 7B, and

(b)the applications mentioned in sub-paragraph (a) are made in connection with the same pregnant woman,

the Scottish Ministers must decide which of the individuals is entitled to benefit having regard to the circumstances of the pregnant woman and cease any payment of this benefit to the individual whom the Scottish Ministers decide is not entitled.]

[F29(2)  A child described in paragraph (2A) is entitled to benefit payable from the date of their birth.

(2A) A child—

(a)who is entitled to benefit by virtue of regulation 8,

(b)who is under 4 months of age, and

(c)for whom another individual is responsible, and that individual, their partner, the person on whom that individual was dependent, or the partner of that person—

(i)was previously entitled to benefit by virtue of regulation 7, 7A or 7B in respect of the pregnancy which resulted in the birth of the child, and

(ii)notifies the Scottish Ministers of the date of birth of the child.]

(3) If an individual described in regulations [F307, 7A, 7B or 8]—

(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.

[F31(4)  Where any provision of these Regulations requires or enables anything to be done by or in respect of a beneficiary and that beneficiary is a child as described in regulation 8, the provision is deemed to refer to the individual responsible for the child or the partner of that individual (as described in regulation 8(1)(a) or (b)).]

[F32(5) Where a beneficiary is entitled to benefit under these Regulations, the Scottish Ministers may, where they consider it appropriate, give the benefit to another person (“the appropriate person”) to be used for the benefit of the beneficiary.

(6) Where the Scottish Ministers consider, for any reason, that it is no longer appropriate for the appropriate person to continue to receive the benefit, they may cease giving the benefit to that person.]

Textual Amendments

Commencement Information

I6Reg. 11 in force at 12.8.2019, see reg. 1(2)

[F33Change of circumstances affecting entitlement to benefitS

12.—(1) The persons mentioned in paragraph (2) must inform the Scottish Ministers of a change of circumstances affecting a beneficiary’s entitlement to benefit under these Regulations.

(2) The persons are—

(a)where the benefit is paid to a person other than the beneficiary under and in accordance with regulation 11(5) or regulation 12A(1)(b), the person to whom the benefit is paid, or

(b)in any other case, the beneficiary.]

Textual Amendments

Commencement Information

I7Reg. 12 in force at 12.8.2019, see reg. 1(2)

[F34Appointment of a person to act on behalf of an individualS

12A.—(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 [F35(3), (4) or (4A)] 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.

[F36(4A) This paragraph applies if—

(a)the individual is under 16 years of age, and

(b)it appears to the Scottish Ministers that there is no person who—

(i)has authority to act on behalf of the individual,

(ii)resides with, and has care of, the individual, and

(iii)is willing, and practicably able, to act on the individual’s behalf in relation to the matters mentioned in paragraph (1).]

(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 [F37who is 16 years of age or over]—

(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.

[F38(6A) Where an appointee is appointed to act on behalf of an individual who is under 16 years of age—

(a)the appointee can do anything that a person with authority (however arising) to act on behalf of the individual in relation to the determination of the individual’s entitlement to benefit 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 might 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.

[F39(9A) The Scottish Ministers must consider whether to make an appointment by virtue of paragraph (4A), or to terminate such 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,

(ii)reside with, and have care of the individual, or

(iii)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) [F40or (4A)] 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, F41...

(b)the views of anyone else who appears to the Ministers to have an interest in the welfare or financial affairs of the [F42individual, and]

[F43(c)where the individual is under 16 years of age, the views of anyone who is a relevant person in relation to the individual within the meaning of section 200 of the Children’s Hearings (Scotland) Act 2011.]

(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.

[F44(12A) A person appointed by the Scottish Ministers under and in accordance with section 85A of the 2018 Act may be treated by them as an appointee of an individual under 16 years of age 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 [F45to appointments under 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.]

Textual Amendments