Social Security (Scotland) Act 2018

• (c) in the case of an appointment by virtue of subsection (7), a person with authority (however arising) to act on behalf of the individual in relation to the determination of the individual's entitlement to assistance.

• (11) The Scottish Ministers may terminate an appointment under subsection (1) at any time.

• (12) The Scottish Ministers must—

• (a) terminate an appointment made by virtue of subsection (3)(a) if the individual withdraws agreement to it,

• (b) consider whether to terminate an appointment made by virtue of subsection (3)(a) if requested to do so by anyone who appears to the Ministers to have an interest in the welfare or financial affairs of the individual.

• (13) The Scottish Ministers must consider whether to terminate an appointment made by virtue of subsection (6) if requested to do so by anyone who appears to the Ministers to have an interest in the financial affairs of the individual.

• (14) The Scottish Ministers must consider whether to make an appointment by virtue of subsection (7), 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.

• (15) Subsection (16) applies where the Scottish Ministers are deciding whether to make an appointment by virtue of subsection (7) or to terminate such an appointment.

• (16) 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.

Non-disclosure of health information

62A

• (1) This section applies in relation to a duty of the Scottish Ministers arising from section 38(5), 40(1), 41(6), 42(2), 44(1) or 53(2) to inform a person (“the recipient”) of certain things in connection with the determination of an individual's entitlement to assistance.

• (2) Nothing in the duty is to be regarded as requiring the Scottish Ministers to disclose information if subsection (3) applies to it.

• (3) This subsection applies to information if—

• (a) it relates to the physical or mental health of the individual, and

• (b) a registered medical practitioner or a registered nurse has informed the Scottish Ministers that disclosure of the information would be likely to cause serious harm to the physical or mental health of the recipient.

Identifying possible eligibility

84C

• (1) Subsection (2) applies if, in the course of their making a determination of an individual's entitlement to assistance under Part 2 or (as the case may be) regulations under section 79, it appears to the Scottish Ministers that the individual may be eligible for other assistance.

• (2) The Scottish Ministers must—

• (a) inform the individual that the individual may be eligible for the other assistance, and

• (b) either—

• (i) provide the individual with information about how to apply for it, or

• (ii) if regulations under section 52 , or (as the case may be) section 79 so allow, ask the individual whether they should proceed with making a determination of the individual's entitlement to the other assistance without receiving an application.

• (3) Subsection (2)(b)(ii) does not preclude the Scottish Ministers from requesting further information under section 54(1) , or (as the case may be) regulations under section 79 for the purpose of determining the individual's entitlement to the other assistance.

• (4) In this section, “other assistance” means—

• (a) where the determination mentioned in subsection (1) relates to an individual's entitlement to assistance under Part 2—

• (i) a different type of assistance described in Chapter 2 of that Part from the type of assistance that the determination mentioned in subsection (1) relates to,

• (ii) the same type of assistance as that determination relates to, but in respect of a different period or (as the case may be) event, or

• (iii) assistance under regulations under section 79,

• (b) where the determination mentioned in subsection (1) relates to an individual's entitlement to assistance under regulations under section 79—

• (i) a different type of assistance described in regulations under section 79 from the type of assistance that the determination mentioned in subsection (1) relates to,

• (ii) the same type of assistance as that determination relates to, but in respect of a different period or (as the case may be) event, or

• (iii) a type of assistance described in Chapter 2 of Part 2.

85C

• (1) The Scottish Ministers—

• (a) must prepare guidelines governing their decisions in connection with appointments under sections 85A and 85B,

• (b) may revise the guidelines,

• (c) must make the latest version of the guidelines publicly available by such means as they consider appropriate.

• (2) The guidelines must, in particular, set out—

• (a) the steps that the Scottish Ministers will take to determine that a person is suitable for appointment,

• (b) how a request that an appointment be made or terminated may be made and how it will be handled,

• (c) the process by which persons with an interest in the making or termination of an appointment will be involved in those decisions,

• (d) the steps that the Scottish Ministers will take to review appointments periodically (being in any case no more than 5 years) and the process by which that will occur,

• (e) how concerns about the acts, or omissions, of an appointee may be raised and how any concerns raised will be handled.

• (3) In preparing or revising the guidelines, the Scottish Ministers must have regard (among other things) to the following considerations—

• (a) that an appointment in the case of a living individual should be made only if it appears to secure a benefit in respect of the individual that cannot reasonably be achieved without the appointment,

• (b) that such an appointment should last for only so long as it continues to secure that benefit,

• (c) that, so far as reasonably practicable, before decisions are made—

• (i) persons who may be affected are consulted, and

• (ii) due account is taken of their views (or, if they are incapable within the meaning of the Adults with Incapacity (Scotland) Act 2000, their wishes and feelings),

• (d) that decisions should be made on the basis of good information,

• (e) that decision-making processes should, so far as reasonably practicable, take account of the circumstances of individual cases,

• (f) that persons who may be affected by decisions are given adequate information and support in relation to their involvement in the decision-making process.

• (4) In preparing or revising the guidelines, the Scottish Ministers must consult—

• (a) the Commissioner for Children and Young People in Scotland,

• (b) the Mental Welfare Commission for Scotland,

• (c) the Public Guardian (established by section 6 of the Adults with Incapacity (Scotland) Act 2000), and

• (d) local authorities.

Power to set value of assistance as nil

11A

• (1) Provision may be made in the regulations for the value of the carer's assistance that is to be given to an individual in respect of a period to be £0, but—

• (a) such provision must be framed so as to apply by reference to at least one of the following matters—

• (i) the individual being resident and present in a particular place during the period,

• (ii) the individual being in receipt of another type of assistance (whether under this Act or another enactment) during the period, and

• (b) the Scottish Ministers may only make such provision where they consider that it would be in the interests of the individuals to whom it applies to be entitled to carer's assistance with a value of £0 in respect of a period rather than not being entitled to carer's assistance at all.

• (2) Nothing in sub-paragraph (1)(a) is to be taken to preclude provision being framed so as to apply by reference to further matters in addition to those mentioned there.

Power to set value of assistance as nil

14A

• (1) Provision may be made in the regulations for the value of the disability assistance that is to be given to an individual in respect of a period to be £0, but—

• (a) such provision must be framed so as to apply by reference to at least one of the following matters—

• (i) the individual being resident and present in a particular place during the period,

• (ii) the individual being in receipt of another type of assistance (whether under this Act or another enactment) during the period, and

• (b) the Scottish Ministers may only make such provision where they consider that it would be in the interests of the individuals to whom it applies to be entitled to disability assistance with a value of £0 in respect of a period rather than not being entitled to disability assistance at all.

• (2) Nothing in sub-paragraph (1)(a) is to be taken to preclude provision being framed so as to apply by reference to further matters in addition to those mentioned there.

Power to set value of assistance as nil

11A

• (1) Provision may be made in the regulations for the value of the employment-injury assistance that is to be given to an individual in respect of a period to be £0, but—

• (a) such provision must be framed so as to apply by reference to at least one of the following matters—

• (i) the individual being resident and present in a particular place during the period,

• (ii) the individual being in receipt of another type of assistance (whether under this Act or another enactment) during the period, and

• (b) the Scottish Ministers may only make such provision where they consider that it would be in the interests of the individuals to whom it applies to be entitled to employment-injury assistance with a value of £0 in respect of a period rather than not being entitled to employment-injury assistance at all.

• (2) Nothing in sub-paragraph (1)(a) is to be taken to preclude provision being framed so as to apply by reference to further matters in addition to those mentioned there.

Power to set value of assistance as nil

10A

• (1) Provision may be made in the regulations for the value of the housing assistance that is to be given to an individual in respect of a period to be £0, but—

• (a) such provision must be framed so as to apply by reference to at least one of the following matters—

• (i) the individual being resident and present in a particular place during the period,

• (ii) the individual being in receipt of another type of assistance (whether under this Act or another enactment) during the period, and

• (b) the Scottish Ministers may only make such provision where they consider that it would be in the interests of the individuals to whom it applies to be entitled to housing assistance with a value of £0 in respect of a period rather than not being entitled to housing assistance at all.

• (2) Nothing in sub-paragraph (1)(a) is to be taken to preclude provision being framed so as to apply by reference to further matters in addition to those mentioned there.

SCHEDULE 11

Circumstances in which assistance may be suspended

1

• (1) The regulations may provide for an individual's assistance to be suspended in the following circumstances only—

• (a) under section 54(1A) the Scottish Ministers have issued a decision to suspend assistance to the individual due to a failure to provide information which the individual is yet to provide,

• (b) where the Scottish Ministers have made arrangements (whether under section 85A, 85B or otherwise) for a person to receive the assistance on the individual's behalf, and the Ministers consider that it is necessary to suspend the assistance—

• (i) in order to protect the individual from the risk of financial abuse,

• (ii) because the person with whom the Ministers have made arrangements is unable to continue to receive the assistance, or

• (iii) for any other reason specified in the regulations, or

• (c) the individual has requested that the Scottish Ministers temporarily stop giving the assistance in question and is yet to request that they resume doing so.

• (2) For the purpose of sub-sub-paragraph (1)(b), “financial abuse” includes—

• (a) having money or other property stolen,

• (b) being defrauded,

• (c) being put under pressure in relation to money or other property,

• (d) having money or other property misused.

Safeguards: requirement to consider financial circumstances before suspension

2

The regulations must require the Scottish Ministers, before suspending the assistance given to an individual, tohave regard to the financial circumstances of the individual.

Safeguards: right to review suspension

3

The regulations must confer a right on an individual whose assistance has been suspended to require the Scottish Ministers to review their decision to suspend the individual's assistance.

Safeguards: information to be given following suspension

4

• (1) The regulations must require the Scottish Ministers to inform an individual whose assistance they have suspended—

• (a) of their decision to suspend the individual's assistance,

• (b) of the reasons for their decision,

• (c) of any steps which might be taken by the individual in order for the Scottish Ministers to consider ending the suspension, and

• (d) of the individual's right in accordance with the regulations to require the Scottish Ministers to review their decision to suspend the individual's assistance.

• (2) The regulations must provide that the Scottish Ministers are to fulfil the duty described by sub-paragraph (1) in a way that leaves the individual with a record of the information which the individual can show to, or otherwise share with, others.

Safeguards: effect of suspension ending

5

The regulations must provide that when—

• (a) the suspension of an individual's assistance ends, and

• (b) under the latest determination of the individual's entitlement to the type of assistance in question, the individual would have become entitled to be given assistance during the period of the suspension,

the individual is immediately to be given under section 24 the assistance that the individual would have become entitled to be given under the determination during that period.

Generality of enabling power unaffected

6

Nothing in this schedule is to be taken to limit the provision that may be included in the regulations except to the extent stated.

Interpretation

7

In this schedule—

• (a) references to an individual's assistance being suspended are to an individual, by virtue of the regulations, not becoming entitled to be given some or all of the assistance in respect of a period that the individual otherwise would at the time, or times, prescribed by regulations under section 51(2)(a),

• (b) “the regulations” means regulations under section 51(1).

Restrictions on power

No assignation or charge

Information-sharing

Uprating for inflation

86A

• (1) Before the end of each financial year, the Scottish Ministers must—

• (a) calculate the inflation-adjusted level of each relevant figure,

• (b) prepare a report that complies with subsection (2),

• (c) lay a copy of the report before the Scottish Parliament, and

• (d) make the report publicly available by such means as the Ministers consider appropriate.

• (2) A report prepared under subsection (1)(b) complies with this subsection if it—

• (a) states what the Scottish Ministers have most recently calculated to be the inflation-adjusted level of each relevant figure,

• (b) explains how the Ministers calculated the inflation-adjusted levels, and

• (c) states what (if anything) the Ministers have done, or intend to do, in light of their calculations and their reasons for that decision.

• (3) In this section, “relevant figure” means―

• (a) a figure prescribed as the value, or part of the value, of the assistance that is to be given to an individual in regulations under—

• (i) any section in Chapter 2 of Part 2, ...

• (ii) section 79, or

• (iii) section 93A, but

• (b) not a figure which is so prescribed to apply only in respect of periods that have ended, or events that occurred, before a particular date.

• (4) The inflation-adjusted level of a figure prescribed in regulations is to be calculated for the purposes of this Chapter as follows—

$$f × ( 1 + i 100 )$where—f is the figure prescribed, andi is the number of percentage points which the Scottish Ministers consider reflects the change in the general level of relevant prices since a copy of a report was last laid before the Scottish Parliament under subsection (1)(c).$

• (5) It is for the Scottish Ministers to decide what prices are “relevant prices” in terms of subsection (4).

• (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

86B

• (1) Before the end of each financial year, having calculated in accordance with section 86A the inflation-adjusted level of each relevant figure ...the Scottish Ministers must bring forward legislation to replace any relevant figure ... which is, in their opinion, materially below its inflation-adjusted level with a figure of at least that level (subject to any rounding they think appropriate).

• (2) The reference in subsection (1) to bringing forward legislation to replace a figure is a reference to laying before the Scottish Parliament for approval by resolution a draft Scottish statutory instrument containing regulations that would have the effect of replacing the figure.

• (3) If the Scottish Parliament approves a draft instrument laid before it by the Scottish Ministers in fulfilment of their duty under subsection (1), the Ministers must make the regulations contained in the draft instrument.

• (4) In this section ... “relevant figure” is to be construed in accordance with section 86A(3).

85E

• (1) A person appointed under section 85A or 85B must have regard to any guidance issued by the Scottish Ministers about the way in which the role of appointee should be carried out.

• (2) The Scottish Ministers must make guidance issued for the purpose of subsection (1) publicly available.

Part 5A — Care experience assistance

93A

• (1) The Scottish Ministers may by regulations establish one or more schemes to give financial assistance to individuals who have had experience of being in the care system.

• (2) In this Act, assistance given by virtue of subsection (1) is known as “care experience assistance”.

• (3) The power conferred by subsection (1) includes the power to make provision about—

• (a) who is to give the assistance,

• (b) determining entitlement to the assistance (including specifying further eligibility rules that are to be used to determine whether an individual is entitled to the assistance),

• (c) the amount of assistance,

• (d) applications for assistance,

• (e) the making of payments to entitled individuals or their representatives,

• (f) obtaining information,

• (g) reviews, re-determinations and appeals,

• (h) the recovery of assistance given in error,

• (i) offences,

• (j) applying the provisions of this Act to schemes established by virtue of subsection (1) subject to such modifications as the Scottish Ministers consider appropriate.

• (4) The maximum penalty that may be provided for in care experience assistance regulations in respect of an offence under those regulations is—

• (a) on summary conviction—

• (i) imprisonment for a term not exceeding 12 months,

• (ii) a fine not exceeding the statutory maximum, or

• (iii) both,

• (b) on conviction on indictment—

• (i) imprisonment for a term not exceeding 5 years,

• (ii) a fine, or

• (iii) both.

• (5) Sections 71 to 73 (which establish offences) apply in connection with care experience assistance as they apply in connection with assistance given under section 24.

• (6) But subsection (5) is subject to any contrary provision in the care experience assistance regulations.

• (7) Where they apply by virtue of subsection (5), sections 71 to 73 apply subject to the following modifications—

• (a) a reference to assistance is to be read as a reference to care experience assistance,

• (b) a reference to giving notice in accordance with section 56 is to be read as a reference to giving notice in accordance with the care experience assistance regulations,

• (c) sections 72(3) and 73(3) do not apply unless, in accordance with the care experience assistance regulations, the Scottish Ministers have informed the person in question about the way in which notification of a change of circumstances is to be given.

• (8) For the avoidance of doubt, the reference in section 74 to an offence under this Act or any regulations made under it includes—

• (a) an offence under any of sections 71 to 73 as applied by virtue of subsection (5),

• (b) an offence under the care experience assistance regulations.

• (9) The Scottish Ministers—

• (a) may give directions in relation to the giving of assistance under schemes established by virtue of subsection (1) to the persons responsible for giving it (which those persons must comply with), and

• (b) must make publicly available any directions they give under paragraph (a).

• (10) Before laying a draft of a Scottish statutory instrument containing care experience assistance regulations before the Scottish Parliament for approval by resolution, the Scottish Ministers must consult—

• (a) such persons as they consider representative of individuals who have had experience of being in the care system, and

• (b) such other persons as they consider appropriate.

• (11) For the purpose of subsection (10), it is immaterial that anything done by way of consultation was done before section 2(2) of the Social Security (Amendment) (Scotland) Act 2025 comes into force.

• (12) In this section, “care experience assistance regulations” means regulations under subsection (1).