The Early Years Assistance (Best Start Grants) (Scotland) Regulations 2018

Made: 9th December 2018

Coming into force: 10th December 2018

The Scottish Ministers make the following Regulations in exercise of the powers conferred by sections 32(2), 41(4)(a), 43(5) and 52 of the Social Security (Scotland) Act 2018 and all other powers enabling them to do so.

In accordance with section 96 of that Act, a draft of these Regulations has been laid before and approved by resolution of the Scottish Parliament.

PART 1 — Introduction

Citation

1

These Regulations may be cited as the Early Years Assistance (Best Start Grants) (Scotland) Regulations 2018.

Commencement

2

These Regulations come into force on the day after the day they are made.

Overview

3

• (1) Part 2 makes provision about the interpretation of these Regulations.

• (2) Schedule 1 makes provision about matters of procedure for determining entitlement to early years assistance.

• (3) Schedule 2 makes provision about the early years assistance that is to be given in connection with having, or expecting to have, a new baby in the family (referred to in these Regulations as “pregnancy and baby grant”).

• (4) Schedule 3 makes provision about the early years assistance that is to be given in connection with a child aged between 2 and 3½ years (referred to in these Regulations as “early learning grant”).

• (5) Schedule 4 makes provision about the early years assistance that is to be given in connection with a child reaching the age at which children in Scotland usually start primary school (referred to in these Regulations as “school-age grant”).

PART 2 — Interpretation

Expressions about time and timing

When an application is to be treated as made

4

• (1) An application is to be treated as made—

• (a) on the day it is received by the Scottish Ministers; or

• (b) if applicable, on—

• (i) the day chosen by the Scottish Ministers in accordance with paragraph (3); or

• (ii) the day the applicant nominates (or is deemed to have nominated) under regulation 5.

• (2) In a case where, by virtue of a paragraph of Part 2 of schedule 1, a determination is to be, or has been, made without an application, references in these Regulations to the day the application is made are to be read in accordance with that paragraph.

• (3) If, before making a determination on the basis of an application, the Scottish Ministers consider that the applicant—

• (a) would not be eligible for the assistance applied for if the application were treated as made on the day they received it; and

• (b) would be eligible for the assistance if the application were treated as made on a day falling within the period of 10 days beginning with the day they received it,

the Scottish Ministers may choose the day within that 10 day period on which the application is to be treated as made.

• (4) For the avoidance of doubt, a thing that purports to be an application is not an application unless it is—

• (a) made in the form; and

• (b) accompanied by the evidence,

required under section 38 of the Social Security (Scotland) Act 2018.

Late application: nomination of date

5

• (1) An applicant may nominate the date on which an application will be treated as made by virtue of regulation 4(1)(b)(ii) if—

• (a) the award of universal credit or assistance of a kind specified in regulation 11 that the applicant is relying on to meet the relevant eligibility condition is a backdated award;

• (b) the backdated award is an award of assistance for—

• (i) a day that falls within the application window; or

• (ii) a period that includes at least 1 day that falls within the application window; and

• (c) the application is received by the Scottish Ministers—

• (i) not more than 20 working days after the last day of the application window; and

• (ii) within 3 months of the applicant being informed of the backdated award by or on behalf of the public authority who made it.

• (2) If the backdated award is for—

• (a) 1 day only; or

• (b) a period and only 1 day of it falls within the application window,

the applicant may only nominate that day under this regulation.

• (3) If—

• (a) the backdated award is for a period; and

• (b) more than 1 day of the period falls within the application window,

the applicant may nominate any of those days under this regulation.

• (4) If the applicant is entitled to nominate a day under this regulation but has not done so, the applicant is to be deemed to have nominated—

• (a) the only day the applicant could have nominated in accordance with paragraph (2); or

• (b) the latest day the applicant could have nominated in accordance with paragraph (3).

• (5) In this regulation—

• “application window” means—in relation to an application for a pregnancy and baby grant, the period that— begins—on the first day of the 24th week of the pregnancy that resulted, or is to result, in the birth of the child in question, orin a case where the child is born before the 24th week of pregnancy is reached, on the day the child is born, andends with the deadline set by paragraph 2 of schedule 2; in relation to an application for an early learning grant, the period described in paragraph 1(b) of schedule 3, in relation to an application for a school-age grant, the period described in paragraph 2 of schedule 4,

• “backdated award” means an award of assistance for a day, or a period that begins on a day, that falls before the day the decision to make the award was taken;

• “the relevant eligibility condition” means—in relation to an application for a pregnancy and baby grant, the eligibility condition in paragraph 1(e) of schedule 2; in relation to an application for an early learning grant, the eligibility condition in paragraph 1(f) of schedule 3, in relation to an application for a school-age grant, the eligibility condition in paragraph 1(f) of schedule 4,

• “working day” means a day other than—a Saturday;a Sunday; ora bank holiday in Scotland under the Banking and Financial Dealings Act 1971 .

Meaning of “birthday”, for children born on 29th February

6

In a non-leap year, the birthday of a child born on 29th February is to be taken to be 28th February.

Calculations involving months

7

• (1) Where a day (“day 1”) is described as falling a specified number of months before or after another day (“day 2”), the date of day 1 is to be determined as follows.

• (2) Count backwards or forwards (as the case may be) the specified number of months from the month in which day 2 falls.

• (3) If the month arrived at in accordance with paragraph (2) has a day corresponding to day 2, day 1 is that day of the month arrived at.

• (4) If the month arrived at in accordance with paragraph (2) has too few days to have a day corresponding to day 2, day 1 is the last day of the month arrived at .

Expressions about inter-personal relationships

Meaning of “partner”

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An individual is to be regarded as the partner of another individual on a day only if, on that day, the 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 ).

Meaning of being responsible for a child

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• (1) An individual is to be regarded as responsible for a child on a day only if at least one of the following statements is true:—

• (a) the child is a dependant of the individual on the day in question;

• (b) the individual is one of the child's parents and, on the day in question—

• (i) normally lives with the child;

• (ii) is under 20 years of age; and

• (iii) is a dependant of another individual;

• (c) the child is, on the day in question, treated in law as the child of the individual by virtue of an order under section 54 or section 54A of the Human Fertilisation and Embryology Act 2008 ;

• (d) the child is, on the day in question, 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, on the day in question, placed with the individual by an adoption agency;

• (f) the individual is, on the day in question, a guardian of the child appointed by deed, will or by a court;

• (g) the individual is, on the day in question, 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 ;

• (b) an adoption service provided as mentioned in paragraph 8(1)(b) of schedule 12 of the Public Services Reform (Scotland) Act 2010 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 ;

• (d) an adoption agency within the meaning of article 3 of the Adoption (Northern Ireland) Order 1987 .

• (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,

• (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”).

• (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,

• (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.

Meaning of “dependant”

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• (1) An individual (“person A”) is to be regarded as a dependant of another individual (“person B”) on a day only if—

• (a) paragraph (1A) applies, or

• (b) on that day person B is a kinship carer for person A.

• (1A) This paragraph applies if—

• (a) person B has been awarded—

• (i) ... child benefit or state pension credit for the day in question (or for a period that includes that day), or

• (ii) universal credit for—

• (aa) the assessment period that includes the day in question, or

• (bb) the assessment period that ended immediately before the assessment period mentioned in head (aa) started, and

• (b) person A is recognised to be a child or young person for whom person B has responsibility in terms of that award of assistance.

• (2) It is immaterial for the purpose of this regulation that the award of assistance to person B referred to in paragraph (1A) 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.

• (3) In this regulation, “kinship carer” has the meaning given in regulation 9(3).

Expressions about social security assistance

Meaning of references to specified kinds of assistance

11

References in these Regulations to a kind of assistance specified in this regulation are to the following:—

• (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (b) housing benefit;

• (c) income-based jobseeker's allowance;

• (d) income-related employment and support allowance;

• (e) income support;

• (f) state pension credit;

• (g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Meaning of references to assistance being awarded

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• (1) 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 the period is £0.

• (2) In sub-paragraph (1)(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 a sanction,

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

• (3) For the avoidance of doubt, in sub-paragraph (1) “kind of assistance” includes universal credit as well as the kinds of assistance specified in regulation 11.

Meaning of “assessment period” in relation to universal credit

13

“Assessment period” means a period in respect of which universal credit may be payable to the individual in question in accordance with section 7 of the Welfare Reform Act 2012 .

SCHEDULE 1 — Procedural matters

PART 1 — Re-determination timescales

Deadline for requesting re-determination

1

The period for requesting a re-determination of entitlement to early years assistance under section 41 of the Social Security (Scotland) Act 2018 is 31 days beginning with the day that the individual is informed, in accordance with section 40 of that Act, of the right to make the request.

Period allowed for re-determination

2

• (1) In relation to determining entitlement to early years assistance, the period allowed for re-determination (within the meaning of section 43 of the Social Security (Scotland) Act 2018) is 16 working days beginning with—

• (a) the day that the request for a re-determination is received by the Scottish Ministers, ...

• (b) in a case where the request for a re-determination is received by the Scottish Ministers outwith the period prescribed in paragraph 1, the day on which it is decided by the Scottish Ministers or (as the case may be) the First-tier Tribunal for Scotland that the individual in question has a good reason for not requesting a re-determination sooner , or

• (c) in a case where the Scottish Ministers have informed the individual of their decision that the request for a re-determination was not made in such form as the Scottish Ministers require, the day on which it is subsequently decided by the First-Tier Tribunal for Scotland that the individual in question has made the request in such form as the Scottish Ministers require.

• (2) For the purpose of this paragraph, a “working day” is a day other than—

• (a) a Saturday;

• (b) a Sunday; or

• (c) a bank holiday in Scotland under the Banking and Financial Dealings Act 1971 .

PART 2 — Determination without application

Determination following application in connection with another child

3

• (1) The Scottish Ministers are to make a determination of an individual's entitlement to early years assistance in connection with a child (without receiving an application) in the circumstance described in sub-paragraph (2).

• (2) The circumstance referred to in sub-paragraph (1) is that—

• (a) the individual has applied for early years assistance in respect of a child; and

• (b) it appears to the Scottish Ministers from the available information that, unless circumstances change, the individual will become eligible for early years assistance in respect of another child within the period—

• (i) beginning on the day the application is made; and

• (ii) ending at the end of the day that falls 10 days later.

• (3) The determination that sub-paragraph (1) requires to be made is to be made on, or as soon as reasonably practicable after, the day that the Scottish Ministers anticipate will be the day on which the individual first becomes eligible for early years assistance in respect of the child as mentioned in sub-paragraph (2)(b).

• (4) The determination that sub-paragraph (1) requires to be made is to be made (subject to sub-paragraph (5)) on the basis that whatever can be discerned from the available information to have been the case on the day the application mentioned in sub-paragraph (2)(a) was made remains the case on the day the determination is made.

• (5) A determination is not to be made on the basis of the assumption set out in sub-paragraph (4) if, and to the extent that, the Scottish Ministers have information suggesting the assumption is unsound.

• (5A) 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.

• (6) In this paragraph, “the available information” means—

• (a) the information provided in the application referred to in sub-paragraph (2)(a); and

• (b) any other information obtained by the Scottish Ministers in connection with that application.

SCHEDULE 2 — Pregnancy and baby grant

PART 1 — Eligibility

Eligibility

1