The Winter Heating Assistance (Pension Age) (Scotland) Regulations 2024

Made: 19th November 2024

Coming into force: 20th November 2024

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

These Regulations may be cited as the Winter Heating Assistance (Pension Age) (Scotland) Regulations 2024 and come into force on 20 November 2024.

Interpretation

2

In these Regulations—

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

• “care home” means an establishment which provides a care home service as defined in paragraph 2 of schedule 12 of the Public Services Reform (Scotland) Act 2010,

• ...

• “couple” means two people who are—married to, or civil partners of, each other and are members of the same household, ornot married to, or civil partners of, each other but are living together as if they were a married couple or civil partners,

• “determination” means a determination of entitlement within the meaning of section 25 of the 2018 Act (meaning of “determination of entitlement”),

• “free in-patient treatment” has the same meaning as in regulation 2(4) and (5) of the Social Security (Hospital In-Patients) Regulations 2005 (hospital in-patients entitled to an increase in benefit for a dependant)[^f00004],

• “income support” means income support under Part VII of the Social Security Contributions and Benefits Act 1992 (income-related benefits)[^f00005],

• “income-based jobseeker’s allowance” means income-based jobseeker’s allowance under the Jobseekers Act 1995[^f00006],

• “income-related employment and support allowance” means an income-related allowance under Part 1 of the Welfare Reform Act 2007 (employment and support allowance)[^f00007],

• “independent hospital” means an independent healthcare service specified in section 10F(1)(a) and (b), and defined in section 10F(2), of the National Health Service (Scotland) Act 1978 (meaning of “independent health care services”)[^f00008],

• “Pension Age Winter Heating Payment” means winter heating assistance given in accordance with these Regulations,

• “pensionable age” has the meaning given by the rules in paragraph 1 of schedule 4 of the Pensions Act 1995 (equalisation of and increase in pensionable age for men and women)[^f00009],

• “polygamous marriage” means any marriage which took place under the laws of a country which permits polygamy where—any member of the marriage is for the time being married to more than one person, andall the members of the marriage are members of the same household,

• “qualifying week” means in respect of any year the week beginning on the third Monday in the September of that year,

• “relevant benefit” means—state pension credit,income-based jobseeker’s allowance,income-related employment and support allowance,income support,universal credit,...

• “residential care” means, disregarding any period of temporary absence, a care home or an independent hospital where the individual has lived in a care home or independent hospital throughout the qualifying week and for the 12 weeks immediately preceding the qualifying week,

• “state pension credit” has the meaning set out in section 1 of the State Pension Credit Act 2002 (entitlement)[^f00010],

• “universal credit” means universal credit under Part 1 of the Welfare Reform Act 2012 (universal credit)[^f00011],

• ...

PART 2 — Pension Age Winter Heating Payment

Overview

3

• (1) Regulations 4 to 9 provide for eligibility rules for determining entitlement to Pension Age Winter Heating Payment.

• (2) Regulations 10 to 14 make provision about matters of procedure for determining entitlement to Pension Age Winter Heating Payment.

• (3) Regulations 15 and 16 make provision about the Pension Age Winter Heating Payment that is to be given to individuals who are eligible for assistance.

Effect of award of another benefit

4

• (1) An individual is not entitled to a Pension Age Winter Heating Payment under these Regulations if the individual has been awarded a winter fuel payment under—

• (a) the Social Fund Winter Fuel Payment Regulations 2024[^f00012], or

• (b) the Social Fund Winter Fuel Payment Regulations (Northern Ireland) 2024[^f00013],

in respect of the qualifying week.

• (2) An individual is not to be regarded as having been awarded a winter fuel payment specified in paragraph (1) in respect of the qualifying week if the award was made in error (whether or not induced by the individual).

PART 3 — Eligibility rules for Pension Age Winter Heating Payment

Eligibility rules

5

An individual is entitled to be paid Pension Age Winter Heating Payment in respect of a qualifying week if the individual—

• (a) meets—

• (i) the age condition in regulation 6, and

• (ii) the residence condition in regulation 8, and

• (b) is not an individual who is not entitled to Pension Age Winter Heating Payment by virtue of regulation 9.

Age condition

6

The condition is that the individual has reached pensionable age before or on a day in the qualifying week.

Relevant benefit condition

7

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Residence condition

8

• (1) An individual satisfies the residence condition where that individual meets the condition in paragraph (2).

• (2) The condition is that on at least one day falling within the qualifying week—

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

• (b) either—

• (i) the individual is not a person subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act 1999, or

• (ii) the individual is a person subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act 1999 where that person—

• (aa) 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 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,

• (bb) is a member of the family of, and living with, a person specified in sub-head (aa), or

• (cc) 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.

• (3) Where an individual is ordinarily resident in Scotland on at least one day falling within the qualifying week but is no longer so resident by the last day of that week, the individual is to be treated as not meeting the condition in paragraph (2)(a).

• (4) Where an individual is not a person subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act 1999 on at least one day falling within the qualifying week but is subject to immigration control within the meaning of that section by the last day of that week, the individual is to be treated as not meeting the condition in paragraph (2)(b)(i).

• (5) In this regulation “immigration rules” means the rules laid before the United Kingdom Parliament under section 3(2) of the Immigration Act 1971.

Individuals not entitled to Pension Age Winter Heating Payment

9

An individual is not entitled to Pension Age Winter Heating Payment where they are—

• (a) an individual who is receiving free in-patient treatment throughout the qualifying week and has been receiving that treatment for the 52 weeks immediately preceding the qualifying week,

• (b) an individual who is detained in legal custody under a sentence imposed by a court throughout the qualifying week,

• (c) an individual who is entitled to a relevant benefit throughout the qualifying week and is in residential care,

• (d) one member of a couple or polygamous marriage who is entitled to a relevant benefit throughout the qualifying week where Pension Age Winter Heating Payment, or a winter fuel payment under legislation mentioned in regulation 4(1)(a) or (b), has been paid in respect of the qualifying week to the other member of that couple or another member of that marriage, respectively.

PART 4 — Amount of Pension Age Winter Heating Payment

Amount of Pension Age Winter Heating Payment

10

• (1) The amount of Pension Age Winter Heating Payment payable to an entitled individual is decided in accordance with this regulation.

• (2) Where the individual is entitled to a relevant benefit on a day in the qualifying week paragraph (4) applies.

• (3) Where the individual is not entitled to a relevant benefit on a day in the qualifying week and in that week, is—

• (a) under the age of 80, paragraph (5) applies,

• (b) aged 80 or over, paragraph (6) applies.

• (4) The amount payable is—

• (a) £305.10, if the individual—

• (i) has reached the age of 80 in or before the qualifying week, or

• (ii) is a member of a couple or a polygamous marriage in which the other member of the couple or another member of that marriage has reached that age in or before that week,

• (b) £203.40, in any other case.

• (5) The amount payable is—

• (a) £203.40, if the individual does not live with any other entitled individual,

• (b) £101.70, if the individual—

• (i) lives with any other entitled individual, or

• (ii) is in residential care.

• (6) The amount payable is—

• (a) £305.10, if the individual does not live with any other entitled individual,

• (b) £203.40, if the individual lives with any other entitled individual who has not reached the age of 80 in or before the qualifying week,

• (c) £152.55, if the individual—

• (i) lives with any other entitled individual who has reached the age of 80 in or before the qualifying week, or

• (ii) is in residential care.

• (7) Where paragraph (5) or (6) applies, the amount payable is to be decided by reference to which sub-paragraph applies on the last day of the qualifying week.

• (8) In this regulation, an individual is to be treated as if they were entitled to a relevant benefit where the individual is a member of a couple or polygamous marriage and the other member of that couple or another member of that marriage is entitled to a relevant benefit.

• (9) In this regulation and regulation 11A, “lives with” means, disregarding any period of temporary absence, two or more people who share accommodation as their mutual home and they are not in residential care, and cognate expressions are to be construed accordingly.

PART 5 — Determination of entitlement to Pension Age Winter Heating Payment without application

Determination of entitlement to Pension Age Winter Heating Payment without receiving an application

11

• (1) The Scottish Ministers must, without receiving an application, make a determination of an individual’s entitlement to Pension Age Winter Heating Payment where it appears to the Scottish Ministers from information available to them that the individual is likely to meet the eligibility rules in regulations 4 to 9.

• (2) Paragraph (1) applies—

• (a) until 1 April following the qualifying week, or

• (b) on and after 1 April following the qualifying week where an individual becomes entitled to a relevant benefit in respect of the qualifying week by virtue of a decision made after that week.

Determination following official error – underpayments

12

• (1) The Scottish Ministers must make a determination of an individual’s entitlement to Pension Age Winter Heating Payment without receiving an application where they—

• (a) have previously made a determination of the individual’s entitlement to Pension Age Winter Heating Payment, and

• (b) establish that, due to official error, that determination was incorrect resulting in the individual—

• (i) not being given an award of Pension Age Winter Heating Payment, or

• (ii) being given a lower award than that,

to which the individual was entitled.

• (2) In this regulation, “official error” means an error made by someone acting on behalf of the Scottish Ministers or on behalf of a Minister of the Crown that was not materially contributed to by anyone else.

Determination following error – overpayments

13

• (1) The Scottish Ministers must make a determination of an individual’s entitlement to Pension Age Winter Heating Payment without receiving an application where they—

• (a) have previously made a determination of the individual’s entitlement to Pension Age Winter Heating Payment, and

• (b) establish that, due to an error, that determination was incorrect resulting in the individual being given—

• (i) an award of Pension Age Winter Heating Payment to which the individual was not entitled, or

• (ii) a higher award than that to which the individual was entitled.

• (2) In this regulation, reference to an “error” is to—

• (a) an error in the performance of a function conferred by these Regulations or the 2018 Act, including a determination being made—

• (i) wrongly, or

• (ii) correctly, but on the basis of

• (aa) incorrect information, or

• (bb) an assumption which proves to be wrong, or

• (b) a new determination not being made after an assumption on the basis of which an earlier determination was made has proved to be wrong.

PART 6 — Periods in respect of a re-determination request

Periods in respect of a re-determination request

14

• (1) The period for requesting a re-determination of entitlement to Pension Age Winter Heating Payment under section 41 of the 2018 Act (right to request re-determination) is 42 days beginning with the day that the individual is informed, in accordance with section 40 of that Act (notice of determination), of the right to make the request.

• (2) In relation to determining entitlement to Pension Age Winter Heating Payment, the period allowed for re-determination (within the meaning of section 43 of the 2018 Act (duty to re-determine)) is 56 days beginning with—

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

• (b) where the request for a re-determination is received by the Scottish Ministers later than the period prescribed by paragraph (1), the day on which the Scottish Ministers, or, on appeal, the First-tier Tribunal for Scotland, decide that the individual in question has a good reason for not requesting the re-determination sooner, or

• (c) where the Scottish Ministers have informed the individual of their decision that the request for 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.

PART 7 — Payments and making of applications

Form of Pension Age Winter Heating Payment

15

Pension Age Winter Heating Payment is to be given in the form of money in a single payment in respect of the winter following the qualifying week.

Making payments

16

Where Pension Age Winter Heating Payment is payable in respect of an individual, the Scottish Ministers may, where they consider appropriate, make the payment to another person to be used for the benefit of the individual.

PART 8 — Expiry

Expiry

17

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

SCHEDULE — Countries

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Signed

SHIRLEY-ANNE SOMERVILLE — A member of the Scottish Government — 19th November 2024

Explanatory note

(This note is not part of the Regulations)

EXPLANATORY NOTE

These Regulations provide for winter heating assistance for eligible individuals who have reached state pension age.

Part 2 provides an overview of entitlement to Pension Age Winter Heating Payment and makes provision for individuals who are not entitled by virtue of receiving other benefits.

Part 3 provides for the eligibility rules in relation to age, entitlement to a relevant benefit and residence and for individuals who are not entitled in particular circumstances.

Part 4 provides for the amount of Pension Age Winter Heating Payment depending on the age of the individual and who they live with.

Part 5 provides for making determinations of entitlement without receiving an application and for determinations in respect of underpayments and overpayments.

Part 6 provides for the period for making a re-determination request and carrying out the re-determination.

Part 7 provides for the form of payment and payment to appropriate persons.

Part 8 provides for the expiry, on 1 April 2025, of provisions giving entitlement to Pension Age Winter Heating Payment to individuals habitually resident in one of the countries listed in the schedule.

Footnotes

[^f00001]: 2018 asp 9 (“the 2018 Act”). Schedule 4 of the 2018 Act makes provision about the exercise of powers under section 30. Section 41 was amended by paragraph 2 of schedule 7 of the Coronavirus (Scotland) Act 2020 (asp 7). The powers to make these Regulations are exercised together by virtue of section 33(2) of the Interpretation and Legislative Reform (Scotland) Act 2010 (asp 10). The Regulations are subject to the affirmative procedure by virtue of section 33(3) of that Act.