The Carer’s Assistance (Carer Support Payment) (Scotland) Regulations 2023

Made: 25th October 2023

Coming into force in accordance with regulation 1

In accordance with section 97(2) of that Act, the Scottish Ministers have informed the Scottish Commission on Social Security of their proposals, notified the Scottish Parliament that they have done so and made their proposals publicly available by such means as they consider appropriate.

PART 1 — Introductory and interpretation

Citation and commencement

1

• (1) These Regulations may be cited as the Carer’s Assistance (Carer Support Payment) (Scotland) Regulations 2023.

• (2) Subject to paragraph (3), these Regulations come into force on 19 November 2023.

• (3) Regulation 13(2) and (3) come into force on 23 June 2024.

Interpretation

2

In these Regulations—

• “the 2018 Act” means the Social Security (Scotland) Act 2018,

• “the 1992 Act” means the Social Security Contributions and Benefits Act 1992[^f00002],

• “Adult Disability Payment” means disability assistance for adults given in accordance with the Disability Assistance for Working Age People (Scotland) Regulations 2022[^f00003],

• “Armed Forces Independence Payment” means a payment under the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011[^f00004],

• “Attendance Allowance” means an attendance allowance under—section 64 of the 1992 Act, orthe Social Security (Attendance Allowance) Regulations (Northern Ireland) 1992[^f00005],

• “award week” means a period of 7 days beginning on a Sunday and ending on a Saturday,

• “cared for person” is a person described in regulation 5(1),

• “carer element of Universal Credit” means the amount awarded by virtue of—section 12(2)(c) of the Welfare Reform Act 2012[^f00006], orarticle 17(2)(c) of the Welfare Reform (Northern Ireland) Order 2015[^f00007],

• “Carer’s Allowance” means a benefit for carers given under—section 70 (carer’s allowance) of the 1992 Act[^f00008], orsection 70 (carer’s allowance) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992[^f00009],

• “Carer Support Payment” means carer’s assistance given in accordance with these Regulations,

• “Child Disability Payment” means disability assistance for children and young people given in accordance with the Disability Assistance for Children and Young People (Scotland) Regulations 2021[^f00010],

• “Constant Attendance Allowance” means an allowance under—section 104 of the 1992 Act, orarticle 8 of the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006[^f00011],

• “couple” has the meaning given by section 39 of the Welfare Reform Act 2012[^f00012],

• “determination” or “determination of entitlement” has the meaning in section 25 of the 2018 Act,

• “Disability Living Allowance” means a disability living allowance under—section 71 of the 1992 Act, orsection 71 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992[^f00013],

• “EEA state” means—any member state of the European Union, orany other state that is party to the Agreement on the European Economic Area signed at Oporto on 2 May 1992[^f00014], together with the Protocol adjusting that Agreement signed at Brussels on 17 March 1993[^f00015], as modified or supplemented from time to time,

• “Industrial Injuries Disablement Benefit” means a benefit payable under Part V and section 103 of the 1992 Act,

• “legal detention” means detention in legal custody within the meaning of section 295 of the Criminal Procedure (Scotland) Act 1995[^f00016],

• “Pension Age Disability Payment” means disability assistance for older people given in accordance with the Disability Assistance for Older People (Scotland) Regulations 2024,

• “Personal Independence Payment” means personal independence payment under—Part 4 of the Welfare Reform Act 2012, orArticle 82 of the Welfare Reform (Northern Ireland) Order 2015[^f00017],

• “qualifying disability benefit” means—the daily living component of Adult Disability Payment at the standard or enhanced rate,the daily living component of Personal Independence Payment,the care component of Child Disability Payment at the middle or highest rate,the care component of Disability Living Allowance at the middle or highest rate, the care component of Scottish Adult Disability Living Allowance at the middle or highest rate, Pension Age Disability Payment, Attendance Allowance,Armed Forces Independence Payment, orConstant Attendance Allowance—at or above the normal maximum rate with Industrial Injuries Disablement Benefit, orat the basic (full day) rate with a War Disablement Pension,

• “relevant EU Regulation” means—one of the following Regulations—Council Regulation (EC) No 1408/71 of 14 June 1971[^f00018] on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community,Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004[^f00019] on the coordination of social security systems, or in relation to an individual to whom the agreement constituted by the exchange of letters set out in the schedule of—the Family Allowances, National Insurance and Industrial Injuries (Gibraltar) Order 1974, orthe Social Security (Gibraltar) Order 2024,applies, a Regulation mentioned in paragraph (a) of this definition as it forms part of domestic law by virtue of section 3 of the European Union (Withdrawal) Act 2018,

• “Scottish Adult Disability Living Allowance” means disability living allowance for adults given in accordance with the Disability Assistance (Scottish Adult Disability Living Allowance) Regulations 2025,

• “War Disablement Pension” means—any retired pay, pension or allowance granted in respect of disablement under powers conferred by or under the Air Force (Constitution) Act 1917[^f00022], the Personal Injuries (Emergency Provisions) Act 1939[^f00023], the Pensions (Navy, Army, Air Force and Mercantile Marine) Act 1939[^f00024], the Polish Resettlement Act 1947[^f00025], or Part VII or section 151 of the Reserve Forces Act 1980[^f00026],without prejudice to paragraph (a) of this definition, any retired pay or pension to which any of paragraphs (a) to (f) of section 641(1) of the Income Tax (Earnings and Pensions) Act 2003[^f00027] applies, and

• “Young Carer Grant” means a grant paid under the Carer’s Assistance (Young Carer Grants) (Scotland) Regulations 2019[^f00028].

PART 2 — Carer Support Payment

Overview

3

An individual is entitled to Carer Support Payment in accordance with these Regulations if they meet the eligibility rules in—

• (a) regulation 4 (age criteria),

• (b) regulation 5 (provision of care to a cared for person),

• (c) regulations 6 to 11 (residence and presence conditions),

• (d) regulation 12 (entitlement to other benefits),

• (e) regulation 13 (individuals in education),

• (f) regulation 14 (earnings limit).

PART 3 — Eligibility

Age criteria

4

• (1) Carer Support Payment may only be paid in respect of an individual who is 16 years of age or older.

• (2) Where an individual was born on 29 February, the individual’s birthday is to be taken to fall on 28 February in a year which is not a leap year.

Provision of care to a cared for person

5

• (1) Carer Support Payment may only be paid to an individual in respect of a period during which that individual provides regular and substantial care to a person to whom a qualifying disability benefit is normally payable (a “cared for person”).

• (2) For the purposes of paragraph (1), an individual shall only be treated as being regularly and substantially engaged in caring for a cared for person on every day in a week if they are, or are likely to be, regularly engaged for at least 35 hours in an award week in caring for that cared for person.

• (3) No individual can be entitled to Carer Support Payment in respect of a cared for person where another individual is entitled to—

• (a) Carer Support Payment,

• (b) Carer’s Allowance, or

• (c) the carer element of Universal Credit,

in respect of that cared for person.

• (4) The care must not be provided by an individual—

• (a) under or by virtue of a contract, unless the contract is of a kind specified by regulations made under section 1(3)(a) of the Carers (Scotland) Act 2016[^f00029] as not to be regarded as a contract for the purposes of that Act, or

• (b) as voluntary work done for a charity or other not-for-profit organisation for which no payment is received other than reasonable expenses.

• (5) No individual can be entitled to more than one Carer Support Payment in respect of the same period.

• (6) A period during which an individual fails to satisfy the requirement of paragraph (1) is to be treated as a temporary break in care within the meaning of regulation 40 (temporary break in care), provided the individual satisfies the requirements set out in regulation 40.

• (7) For the avoidance of doubt, an individual may be entitled to Carer Support Payment in respect of a cared for person where another individual is entitled to Young Carer Grant for that cared for person.

Residence and presence conditions

6

• (1) An individual satisfies the residence and presence conditions where on any day that individual—

• (a) is ordinarily resident in Scotland,

• (b) is habitually resident in the common travel area,

• (c) is not a person subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act 1999[^f00030],

• (d) is present in the common travel area, and

• (e) has been present in the common travel area for a period of, or for periods amounting in the aggregate to, not less than 26 weeks of the 52 weeks immediately preceding that day.

• (2) In this Part, “common travel area” has the meaning given in section 1(3) of the Immigration Act 1971[^f00031].

• (3) The residence condition set out in paragraph (1)(a) does not apply where on any day the individual—

• (a) is habitually resident in Ireland,

• (b) has a genuine and sufficient link to Scotland, and

• (c) is an individual—

• (i) to whom the Convention on Social Security between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland signed at Dublin on 1 February 2019[^f00032], as modified from time to time in accordance with any provision of it, applies, and

• (ii) in respect of whom the United Kingdom is, as a result, competent for the payment of long term care benefits.

• (4) The reference in paragraph (3)(b) to an individual’s link to Scotland being sufficient is to it being sufficiently close that if the individual were not entitled to Carer Support Payment, paragraph (3) would be incompatible with the Convention on Social Security between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland signed at Dublin on 1 February 2019.

• (5) Paragraph (1)(c) does not apply to a person subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act 1999 where the person—

• (a) is lawfully working in the United Kingdom and is a national of a state with which the United Kingdom has concluded an agreement which replaces in whole or in part an agreement under Article 217 of the Treaty on the Functioning of the European Union[^f00033] which has ceased to apply to, and in, the United Kingdom, providing, in the field of social security, for the equal treatment of workers who are nationals of the signatory state and their families,

• (b) is a member of the family of, and living with, a person specified in sub-paragraph (a), or

• (c) has been given leave to enter, or remain in, the United Kingdom by the Secretary of State upon an undertaking by another person or persons pursuant to the immigration rules, to be responsible for their maintenance and accommodation.

• (6) The past presence condition in paragraph (1)(e) does not apply where an individual—

• (a) has a terminal illness, or

• (b) cares for a cared for person who—

• (i) has a terminal illness,

• (ii) is in receipt of Armed Forces Independence Payment or Constant Attendance Allowance at or above the normal maximum rate with Industrial Injuries Disablement Benefit, or at the basic (full day) rate with a War Disablement Pension, or

• (iii) is not required to meet a past presence condition by virtue of an exception set out in—

• (aa) regulation 2A(1) or 2C(1) of the Social Security (Attendance Allowance) Regulations 1991[^f00034],

• (bb) regulation 2A(1) or 2C(1) of the Social Security (Disability Living Allowance) Regulations 1991[^f00035],

• (cc) regulation 2A(1), 2B, 2C(1) or paragraph 5 of Schedule 2 of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992[^f00036],

• (dd) regulation 22 or 23A(1) of the Social Security (Personal Independence Payment) Regulations 2013[^f00037],

• (ee) regulation 5(8), (10)(b), 5(10A) or 8 of the Disability Assistance for Children and Young People (Scotland) Regulations 2021[^f00038], ...

• (ff) regulation 15(7), 17(2), 18 or 19 of the Disability Assistance for Working Age People (Scotland) Regulations 2022[^f00039], ...

• (gg) regulation 9(7), 11(2), 12 or 13 of the Disability Assistance for Older People (Scotland) Regulations 2024, or

• (hh) regulation 10(7), 12(2), 13 or 14 of the Disability Assistance (Scottish Adult Disability Living Allowance) Regulations 2025

• (7) For the purposes of paragraph (6), an individual or a cared for person has a terminal illness where they are entitled to—

• (a) Disability Living Allowance by virtue of regulation 2(4) of the Social Security (Disability Living Allowance) Regulations 1991,

• (b) Disability Living Allowance by virtue of regulation 2(3) of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992,

• (c) Attendance Allowance by virtue of section 66 of the 1992 Act,

• (d) Attendance Allowance by virtue of regulation 2(3) of the Social Security (Attendance Allowance) Regulations (Northern Ireland) 1992[^f00040],

• (da) Pension Age Disability Payment by virtue of regulation 18 of the Disability Assistance for Older People (Scotland) Regulations 2024,

• (e) Personal Independence Payment by virtue of regulation 21 of the Social Security (Personal Independence Payment) Regulations 2013,

• (f) Universal Credit by virtue of regulations 16(2), 28(5)(a) or 40(5) read with paragraph 1 of Schedule 9 of the Universal Credit Regulations 2013[^f00041],

• (g) Employment and Support Allowance by virtue of regulations 7(1)(a), 16(1)(a), 31(1)(a), 45(2) or 85(2)(b) of the Employment and Support Allowance Regulations 2013[^f00042],

• (h) Personal Independence Payment by virtue of regulation 21 of the Personal Independence Payment Regulations (Northern Ireland) 2016[^f00043],

• (i) Child Disability Payment by virtue of regulation 15 of the Disability Assistance for Children and Young People (Scotland) Regulations 2021,

• (j) Adult Disability Payment by virtue of regulation 26 of the Disability Assistance for Working Age People (Scotland) Regulations 2022.

• (k) Scottish Adult Disability Living Allowance by virtue of regulation 20 of the Disability Assistance (Scottish Adult Disability Living Allowance) Regulations 2025

• (8) The habitual residence condition in paragraph (1)(b) and the past presence condition in paragraph (1)(e) do not apply where an individual is a person who—

• (a) has leave to enter or remain in the United Kingdom granted under the immigration rules by virtue of—

• (i) the Afghan Relocations and Assistance Policy, or

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

• (b) has been granted discretionary leave outside the immigration rules as a dependant of a person referred to in sub-paragraph (a),

• (c) has leave granted under the Afghan Citizens Resettlement Scheme,

• (d) has been granted refugee status or humanitarian protection under the immigration rules,

• (e) has leave to enter or remain in the United Kingdom as the dependant of a person referred to in sub-paragraph (d),

• (f) has leave to enter or remain in the United Kingdom granted under or outside the immigration rules, has a right of abode in the United Kingdom within the meaning given in section 2[^f00044] of the Immigration Act 1971 or does not require leave to enter or remain in the United Kingdom in accordance with section 3ZA of that Act, where the individual—

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

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

• (g) has leave to enter or remain in the United Kingdom granted under or outside the immigration rules, has a right of abode in the United Kingdom within the meaning given in section 2 of the Immigration Act 1971 or does not require leave to enter or remain in the United Kingdom in accordance with section 3ZA of that Act, where the individual—

• (i) was residing in Sudan before 15 April 2023, and

• (ii) left Sudan in connection with the violence which rapidly escalated on 15 April 2023 in Khartoum and across Sudan , ...

• (h) has leave to enter or remain in the United Kingdom granted under or outside the immigration rules, a right of abode in the United Kingdom within the meaning given in section 2 of the Immigration Act 1971 or does not require leave to enter or remain in the United Kingdom in accordance with section 3ZA of that Act, where the individual—