Social Security (Amendment) (Scotland) Act 2025

Part 1 — Types of social security assistance

Childhood assistance

1

• (1) The Social Security (Scotland) Act 2018 (the “2018 Act”) is modified as follows.

• (2) Section 32 and schedule 6 are repealed.

• (3) After section 32 insert—

(32A) (1) Childhood assistance is assistance (which may or may not take the form of money) given by the Scottish Ministers under section 24 to help towards meeting some of the costs associated with having a child in the family. (2) The Scottish Ministers are to make regulations prescribing— (a) the eligibility rules that are to be applied to determine whether an individual is entitled to childhood assistance, and (b) what childhood assistance an individual who is entitled to it is to be given. (3) Schedule 6A makes provision about the exercise of the power conferred by subsection (2). (4) The Early Years Assistance (Best Start Grants) (Scotland) Regulations 2018 (S.S.I. 2018/370) are to be treated for all purposes as if they were made by the Scottish Ministers under subsection (2).

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• (4) After schedule 6 insert—

Schedule 6A (1) (1) The regulations must be framed so that an individual’s eligibility depends on the individual satisfying one of the primary eligibility criteria. (2) But the regulations may make provision about giving childhood assistance for a specified period or specified number of occasions, and in specified circumstances, to an individual who previously satisfied one of the primary eligibility criteria but no longer does so. (3) The primary eligibility criteria are that the individual— (a) is, or has been, pregnant, (b) has a relationship of a specified kind to another individual who is, or has been, pregnant, (c) is to, or has, become responsible for a child, (d) has a relationship of a specified kind to another individual who is to, or has, become responsible for a child. (4) The regulations may make an individual’s eligibility depend on the individual— (a) being, or having been, more than a specified number of weeks pregnant, or (b) having, or having had, a relationship of a specified kind to another individual who is, or has been, a specified number of weeks pregnant. (5) The regulations are to define what being responsible for a child means for the purpose of determining entitlement to childhood assistance. (6) The regulations may make provision about giving childhood assistance to someone who meets one of the primary eligibility criteria within a specified period of a specified event occurring in a child’s life. (2) The regulations may provide that an individual is not eligible, despite satisfying one of the primary eligibility criteria, on account of that criterion being satisfied in respect of the same child, or the same pregnancy, by someone else. (3) The regulations may make an individual’s eligibility depend on the individual being resident and present in a particular place. (4) The regulations may make an individual’s eligibility depend on the individual’s financial circumstances. (5) The regulations may make an individual’s eligibility depend on the individual— (a) being, or not being, in receipt of another type of assistance (whether under this Act or another enactment), (b) being, or not being, eligible or entitled to receive such assistance. (6) The regulations may provide that an individual ceases to be eligible on account of satisfying one of the primary eligibility criteria unless, by a deadline specified in the regulations— (a) the individual has applied for childhood assistance, or (b) the Scottish Ministers have become required to make a determination of the individual’s entitlement to childhood assistance by regulations under section 52. (7) If the regulations include provision of the kind mentioned in paragraph 6(a), they may make provision about the circumstances in which an application made after the deadline specified in the regulations may be treated as if it had been made by that deadline. (8) Where childhood assistance is given to an individual on the basis that the individual has ongoing entitlement to it, the regulations may provide for the assistance to be given (in whole or in part) by way of— (a) payment to another person in order to meet, or contribute towards meeting, any liability the individual has to that person, (b) deduction from any liability the individual has to the Scottish Ministers under— (i) section 63, or (ii) provision corresponding to section 63 made by regulations under section 79. (9) (1) The regulations may allow childhood assistance to be given to an individual in a form other than money only if the individual (or a person acting on the individual's behalf) has agreed to the assistance being given in that form. (2) If the regulations include provision of the kind mentioned in sub-paragraph (1), they must allow an individual (or a person acting on the individual’s behalf) to withdraw agreement to being given childhood assistance in a form other than money at any time. (3) Sub-paragraph (4) applies where childhood assistance is given to an individual on the basis that the individual has ongoing entitlement to it. (4) The regulations may provide for the assistance to be given (in whole or in part) by way of deduction, at a reasonable level, from any liability the individual has to the Scottish Ministers under section 63, or provision corresponding to section 63 made by regulations under section 79, if the individual has unreasonably refused to agree to the assistance being given in that form. (5) For the purpose of sub-paragraph (4), “reasonable level” means a level that is reasonable having regard to the financial circumstances of the individual. (10) Nothing in this schedule, apart from the following provisions, is to be taken to limit what may be prescribed in the regulations— (a) Chapter 1 of Part 1, (b) Part 2. (11) In this schedule— - “eligibility” means eligibility for childhood assistance and “eligible” means eligible for childhood assistance, - “the regulations” means regulations under section 32A(2), - “specified” means specified in the regulations.

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Care experience assistance

2

• (1) The 2018 Act is modified as follows.

• (2) After section 93 insert—

(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).

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Part 2 — Applications for assistance

Repeal of section 52B of the 2018 Act

3

• (1) The 2018 Act is modified as follows.

• (2) Section 52B is repealed.

Power to make provision about late applications for assistance

4

• (1) The 2018 Act is modified as follows.

• (2) In schedule 2 (carer’s assistance regulations), after paragraph 9 insert—

(9A) If the regulations include provision of the kind mentioned in paragraph 9(a), they may make provision about the circumstances in which an application made after the deadline specified in the regulations may be treated as if it had been made by that deadline.

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• (3) In schedule 3 (cold-spell heating assistance regulations), after paragraph 7 insert—

(7A) If the regulations include provision of the kind mentioned in paragraph 7(a), they may make provision about the circumstances in which an application made after the deadline specified in the regulations may be treated as if it had been made by that deadline.

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• (4) In schedule 4 (winter heating assistance regulations), after paragraph 5 insert—

(5A) If the regulations include provision of the kind mentioned in paragraph 5(a), they may make provision about the circumstances in which an application made after the deadline specified in the regulations may be treated as if it had been made by that deadline.

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• (5) In schedule 5 (disability assistance regulations), after paragraph 8 insert—

(8A) If the regulations include provision of the kind mentioned in paragraph 8(a), they may make provision about the circumstances in which an application made after the deadline specified in the regulations may be treated as if it had been made by that deadline.

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• (6) In schedule 6 (early years assistance regulations), after paragraph 6 insert—

(6A) If the regulations include provision of the kind mentioned in paragraph 6(a), they may make provision about the circumstances in which an application made after the deadline specified in the regulations may be treated as if it had been made by that deadline.

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• (7) In schedule 7 (employment-injury assistance regulations), after paragraph 9 insert—

(9A) If the regulations include provision of the kind mentioned in paragraph 9(a), they may make provision about the circumstances in which an application made after the deadline specified in the regulations may be treated as if it had been made by that deadline.

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• (8) In schedule 8 (funeral expense assistance regulations), after paragraph 8 insert—

(8A) If the regulations include provision of the kind mentioned in paragraph 8(a), they may make provision about the circumstances in which an application made after the deadline specified in the regulations may be treated as if it had been made by that deadline.

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• (9) In schedule 9 (housing assistance regulations), after paragraph 8 insert—

(8A) If the regulations include provision of the kind mentioned in paragraph 8(a), they may make provision about the circumstances in which an application made after the deadline specified in the regulations may be treated as if it had been made by that deadline.

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Part 3 — Determinations and re-determinations of entitlement to assistance

Re-determinations

Re-determination and appeal deadlines in exceptional circumstances

5

• (1) The 2018 Act is modified as follows.

• (2) In section 41 (right to request re-determination)—

• (a) in subsection (2)(b), the words “(read with section 52A)” are repealed,

• (b) in subsection (4)(b)—

• (i) at the beginning of sub-paragraph (i), insert “if the request is made before the end of the day that falls one year after the day on which the individual is informed (in accordance with section 40) of the determination,”,

• (ii) for “and” following sub-paragraph (i) substitute “or”,

• (iii) for sub-paragraph (ii) substitute—

(ii) if the request is made after the period mentioned in sub-paragraph (i) has ended, there are exceptional circumstances justifying why the request was not made sooner (see section 42).

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• (3) In section 42 (late request for re-determination)—

• (a) in subsection (1), for “41(4)(b)” substitute “41(4)(b)(i)”,

• (b) after subsection (2) insert—

(3) It is for— (a) the Scottish Ministers, or (b) on appeal under section 61, the First-tier Tribunal for Scotland, to decide whether, for the purpose of section 41(4)(b)(ii), there are exceptional circumstances justifying why a request for re-determination was not made sooner. (4) Having made a decision under subsection (3), the Scottish Ministers must inform the individual concerned— (a) of the decision, and (b) if the decision is that there are no exceptional circumstances justifying why a request for re-determination was not made sooner, of— (i) the reasons for the decision, and (ii) the individual’s right to appeal under section 61.

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• (4) In section 48 (deadline for appealing)—

• (a) in subsection (1)(b)—

• (i) after “permission” insert “(in accordance with subsection (3))”,

• (ii) after “(a)” insert “but still within the period of one year beginning with the day the relevant event occurred”,

• (b) in subsection (1)(c)—

• (i) for “may not be brought” substitute “may be brought only with the First-tier Tribunal's permission (in accordance with subsection (4))”,

• (ii) the words “(but see section 52A)” are repealed,

• (c) after subsection (3) insert—

(4) The First-tier Tribunal may give permission under subsection (1)(c) for an appeal to be brought only if it is satisfied that there are exceptional circumstances justifying why the application was not made sooner. (5) Any provision of Scottish Tribunal Rules that would (but for this subsection) have the effect of preventing an appeal being brought by virtue of subsection (1)(c) is to be disregarded to the extent that it would have that effect.

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• (5) Section 52A and the italic heading immediately preceding it are repealed.

• (6) In section 61 (appeal to First-tier Tribunal against process decisions)—

• (a) in subsection (1), after paragraph (c) insert—

(d) that there are no exceptional circumstances justifying why a request for a re-determination was not made sooner (see section 42).

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• (b) in subsection (2)(b)—

• (i) after “permission” insert “(in accordance with subsection (3))”,

• (ii) after “(a)” insert “but still within the period of one year beginning with the day the individual was informed of the decision in accordance with this Act”,

• (c) in subsection (2)(c), for “may not be brought” substitute “may be brought only with the First-tier Tribunal’s permission (in accordance with subsection (3A))”,

• (d) after subsection (3) insert—

(3A) The First-tier Tribunal may give permission under subsection (2)(c) for an appeal to be brought only if it is satisfied that there are exceptional circumstances justifying why the appeal was not made sooner. (3B) Any provision of Scottish Tribunal Rules that would (but for this subsection) have the effect of preventing an appeal being brought by virtue of subsection (2)(c) is to be disregarded to the extent that it would have that effect.

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• (e) in subsection (4)(b), after “(2)(b)” insert “or (c)”.

• (7) In section 85D (right to apply to First-tier Tribunal for review of certain decisions)—

• (a) in subsection (3)(b)—

• (i) after “permission” insert “(in accordance with subsection (4))”,

• (ii) after “(a)” insert “but still within the period of one year beginning with the day on which the decision concerned was made”,

• (b) in subsection (3)(c), for “may not be made” substitute “may be made only with the First-tier Tribunal’s permission (in accordance with subsection (4A))”,

• (c) after subsection (4) insert—

(4A) The First-tier Tribunal may give permission under subsection (3)(c) for an application to be made only if it is satisfied that there are exceptional circumstances justifying why the application was not made sooner. (4B) Any provision of Scottish Tribunal Rules that would (but for this subsection) have the effect of preventing an application being made by virtue of subsection (3)(c) is to be disregarded to the extent that it would have that effect.

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• (d) in subsection (9)(b), after “(3)(b)” insert “or (c)”.

Withdrawal of request for re-determination

6

• (1) The 2018 Act is modified as follows.

• (2) After section 42 insert—

(42A) (1) An individual who has made a request for re-determination may request that the Scottish Ministers disregard it. (2) If an individual requests that a request for re-determination be disregarded— (a) the Scottish Ministers are not to make a determination of the individual’s entitlement to the particular type of assistance mentioned in the request for re-determination on the basis of the request for re-determination, and (b) accordingly, their duty to do so under section 43 ceases to apply. (3) A request under subsection (1) must be made in such form as the Scottish Ministers require. (4) The Scottish Ministers must publicise any requirements for the time being set under subsection (3).

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Re-determinations after the period allowed

7

• (1) The 2018 Act is modified as follows.

• (2) In section 43 (duty to re-determine)—

• (a) subsection (3) is repealed,

• (b) after subsection (4) insert—

(4A) If the Scottish Ministers fail to make the determination within the period allowed for re-determination— (a) section 45 applies, and (b) their duty to make the determination continues unless the individual brings an appeal under section 46. (4B) If an appeal under section 46 is subsequently withdrawn, the duty of the Scottish Ministers to make the determination applies again and continues unless the appeal is reinstated.

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• (3) In section 44 (notice of re-determination), in subsection (1)(a), after sub-paragraph (iii) insert—

(iiia) in circumstances where the individual was previously issued with a notice under section 45, that the individual no longer has the right to appeal to the First-tier Tribunal against the determination under section 37 which prompted the request for a re-determination,

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• (4) In section 45 (notice where re-determination not made timeously), in subsection (1)(a)—

• (a) the “and” following sub-paragraph (i) is repealed,

• (b) the “and” following sub-paragraph (ii) is repealed,

• (c) after sub-paragraph (ii) insert—

(iii) that the Scottish Ministers will continue to consider the request for a re-determination unless the individual brings an appeal against the determination as mentioned in sub-paragraph (ii), (iv) that if the individual brings an appeal against the determination but subsequently withdraws that appeal, the Scottish Ministers will again consider the request for a re-determination, and (v) that if the re-determination is carried out and a notice issued under section 44, the individual’s right to appeal to the First-tier Tribunal mentioned in sub-paragraph (ii) will end, and

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• (5) In section 46 (right to appeal to First-tier Tribunal against determination), in subsection (2)—

• (a) the “and” following paragraph (a) is repealed,

• (b) after paragraph (a) insert—

(aa) the period allowed for re-determination has ended, and

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• (c) in paragraph (b)—

• (i) for “failed” substitute “yet”,

• (ii) the words “within the period allowed for re-determination” are repealed.

New determination of entitlement during appeal

New determination of entitlement during appeal

8

• (1) The 2018 Act is modified in accordance with subsections (2) to (9).

• (2) In section 25 (meaning of “determination of entitlement”), in subsection (1)(a)—

• (a) the “or” following sub-paragraph (i) is repealed,

• (b) after sub-paragraph (ii) insert

or (iii) under section 49A,

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• (3) In section 41 (right to request re-determination)—

• (a) in subsection (1), after “40” insert “or 49B”,

• (b) in subsection (4)(b)(i) (as modified by section 4(2)(b)(i)), after “40” insert “or 49B”.

• (4) In section 45 (notice where re-determination not made timeously), in subsection (1)(a)(ii), after “37” insert “or 49A”.

• (5) In section 46 (right to appeal to First-tier Tribunal against determination)—

• (a) in subsection (1)(b), after “37” insert “or 49A”,

• (b) in subsection (2)(a), after “37” insert “or 49A”.

• (6) In section 48 (deadline for appealing), in subsection (2)(a)(ii), after “37” insert “or 49A”.

• (7) After section 49 insert—

(49A) (1) The Scottish Ministers are to make a new determination of an individual’s entitlement to a particular type of assistance where— (a) an individual has made an appeal to the First-tier Tribunal under section 46 which has not yet been decided, (b) the Scottish Ministers are of the opinion that the determination which is the subject of the appeal (“the original determination”)— (i) resulted in the individual being entitled to less assistance than the individual should have been entitled to, or being entitled to no assistance, or (ii) was otherwise less advantageous to the individual than it should have been, and (c) the individual has agreed to a new determination being made by the Scottish Ministers. (2) A determination under subsection (1) must— (a) result in the individual receiving more assistance than the original determination, or (b) otherwise be more advantageous to the individual than the original determination. (3) A determination under subsection (1) has the effect of ending the individual’s appeal under section 46. (49B) (1) Having made a new determination of an individual’s entitlement to assistance under section 49A, the Scottish Ministers must inform the individual— (a) of the determination, (b) of the reasons for it, (c) of the individual’s right under section 41 to request that the Scottish Ministers re-determine the individual's entitlement to the assistance, (d) that the individual will have the right under section 46 to appeal to the First-tier Tribunal against the determination should the Scottish Ministers fail to deal with a request for a re-determination within the period allowed for re-determination, and (e) if relevant, that the individual has the right to request a copy of an assessment report under section 60. (2) The Scottish Ministers must fulfil their duty under subsection (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. (49C) (1) The Scottish Ministers may by regulations make rules providing for proceedings in the First-tier Tribunal in relation to an appeal to end, by operation of law, where the Scottish Ministers make a new determination of entitlement in relation to any type of assistance— (a) under section 49A, or (b) under regulations made under section 79. (2) Before making regulations under subsection (1), the Scottish Ministers must consult— (a) the President of the Scottish Tribunals, and (b) such other persons as they consider appropriate. (3) Once the Scottish Civil Justice Council and the Court of Session are involved in the making of Scottish Tribunal Rules by virtue of the coming into force of paragraph 13(2) to (5) of schedule 9 of the Tribunals (Scotland) Act 2014 (“the 2014 Act”)— (a) the power conferred by subsection (1) is no longer exercisable by the Scottish Ministers but by the Court of Session by act of sederunt, (b) all rules made by virtue of subsection (1) are to be regarded as if made as Scottish Tribunal Rules under Chapter 2 of Part 7 of the 2014 Act, (c) all such rules have effect accordingly (and may therefore be revoked, amended or remade by Scottish Tribunal Rules under Chapter 2 of Part 7 of the 2014 Act). (4) This section does not affect the power to make Scottish Tribunal Rules in section 71 of the 2014 Act.

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• (8) In section 62 (presumption for purposes of sections 41, 48 and 61), in subsection (1), after “48” insert “, 49B”.

• (9) The section title of section 62 becomes “Presumption for purposes of sections 41, 48, 49B and 61”.

• (10) In section 62A (non-disclosure of information about individual's health), after “44(1)” insert “, 49B(1)”.

• (11) The Tribunals (Scotland) Act 2014 is modified in accordance with subsection (12).

• (12) In schedule 9 (transitional and consequential), after paragraph 4(3) insert—

(4) See section 49C of the Social Security (Scotland) Act 2018 (which makes provision for the making of Tribunal Rules in relation to ending appeals under that Act in certain circumstances).

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Determinations as part of appeal

Determinations as part of appeal

9

• (1) The 2018 Act is modified as follows.

• (2) In section 49 (First-tier Tribunal’s power to determine entitlement)—

• (a) the existing words become subsection (1),

• (b) after that subsection insert—

(2) In exercising its power under subsection (1), the First-tier Tribunal— (a) must not take into account any circumstances which did not exist at the relevant time, but (b) may take into account circumstances which existed but were not known at the relevant time. (3) In this section— - “the relevant time” means the time at which the individual’s entitlement fell to be determined, under the applicable regulations, by the Scottish Ministers in making the original determination under section 37 in relation to that entitlement, - “the applicable regulations” means the regulations made under the section in Chapter 2 that describes the type of assistance in question.

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Appeal against Scottish Ministers’ process decisions

Appeal to First-tier Tribunal against process decisions

10

• (1) The 2018 Act is modified as follows.

• (2) In the italic heading immediately preceding section 61, for “Right to appeal”substitute “Appeal against”.

• (3) In section 61 (appeal to First-tier Tribunal against process decisions), after subsection (3B) (inserted by section 5(6)(d)) insert—

(3C) In an appeal under this section, the First-tier Tribunal may— (a) uphold the decision, (b) set aside the decision and decide— (i) in the case of an appeal against a decision mentioned in subsection (1)(a)— (A) that the application for assistance was made in accordance with section 38(1), or (B) that further information is required in order for the application for assistance to meet the requirements of section 38(1), (ii) in the case of an appeal against a decision mentioned in subsection (1)(b)— (A) that the request satisfied the condition in section 41(3), or (B) that further information is required in order for the request to satisfy the condition in section 41(3), (iii) in the case of an appeal against a decision mentioned in subsection (1)(c), that an individual has a good reason for not requesting a re-determination sooner, (iv) in the case of an appeal against a decision mentioned in subsection (1)(d), that there are exceptional circumstances justifying why a request for a re-determination was not made sooner.

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• (4) After section 61 insert—

(61A) (1) Following a decision of the First-tier Tribunal under section 61(3C)(b)(i)(A) that an application for assistance was made in accordance with section 38(1), the Scottish Ministers must make a determination of entitlement under section 37. (2) Following a decision of the First-tier Tribunal under section 61(3C)(b)(i)(B) that further information is required for the application to meet the requirements of section 38(1), the Scottish Ministers— (a) must seek that further information, and (b) if— (i) that information is received, must make a determination of entitlement under section 37, or (ii) that information cannot be obtained, may make a further decision of the type referred to in section 38(5). (3) Following a decision of the First-tier Tribunal under section 61(3C)(b)(ii)(A) that a request for a re-determination satisfied the condition in section 41(3), the Scottish Ministers must make a determination of entitlement under section 43. (4) Following a decision of the First-tier Tribunal under section 61(3C)(b)(ii)(B) that further information is required for the request to satisfy the condition in section 41(3), the Scottish Ministers— (a) must seek that further information, and (b) if— (i) that information is received, must make a determination of entitlement under section 43, or (ii) that information cannot be obtained, may make a further decision of the type referred to in section 41(6). (5) Following a decision of the First-tier Tribunal under section 61(3C)(b)(iii) or (iv), the Scottish Ministers must make a determination of entitlement under section 43.

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Part 4 — Assistance given in error

Liability for assistance given in error

11

• (1) The 2018 Act is modified as follows.

• (2) In section 63 (liability for assistance given in error)—

• (a) for subsection (1) substitute—

(1) The Scottish Ministers may decide that— (a) an individual, or (b) an individual’s representative, is liable to pay the Scottish Ministers some or all of the value of any assistance that was given to or for the benefit of the individual due to an error.

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• (b) after subsection (1) insert—

(1A) The Scottish Ministers may decide that a person is liable under subsection (1) only— (a) if the error is— (i) the fault of the individual or the individual’s representative, or (ii) the kind of error that an individual could reasonably be expected to notice, and (b) if and to the extent that— (i) in the case of a decision about an individual’s liability, the individual has benefited from the assistance mentioned in subsection (1), or (ii) in the case of a decision about an individual’s representative’s liability, the individual has not benefited from the assistance mentioned in subsection (1).

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• (c) subsections (2) and (3) are repealed,

• (d) in subsection (4), the words “and section 64” are repealed,

• (e) after subsection (4) insert—

(5) For the purpose of subsection (1A)(a)(i), an error is the fault of the individual or the individual’s representative if it is caused or contributed to by the individual or the individual’s representative— (a) providing false or misleading information, (b) failing to notify the Scottish Ministers about a change in circumstances in breach of a duty to do so under section 56, or (c) causing another person to do either of those things. (6) In subsection (5)(a), the reference to providing information includes making a statement. (7) In considering for the purposes of subsection (1A)(a)(ii) whether an error is of a kind that an individual could reasonably be expected to notice, the following are amongst the matters to which regard is to be had— (a) the extent to which the value of the assistance given in error exceeds the value of the assistance that would have been given (if any) had the error not been made, (b) whether any information given to the individual or the individual’s representative by the Scottish Ministers prior to, or immediately after, the assistance being given would have alerted a reasonable person to the fact that a decision had been, or was to be, made on the basis of incorrect information or a wrong assumption. (8) In subsection (7)(b)— (a) the reference to information given to the individual or the individual’s representative by the Scottish Ministers does not include information explaining why the Ministers consider the assistance to have been given in error, (b) the reference to information given to the individual’s representative includes only information given when that person was the individual’s representative. (9) For the purpose of subsection (1A)(b), it is to be assumed that the individual has benefited from the assistance mentioned in subsection (1) unless the Scottish Ministers are aware that that is not the case. (10) If the Scottish Ministers would be entitled to decide that a person is liable under subsection (1) but for the fact that the person has died since the assistance was given, the Scottish Ministers may decide that the person’s estate is liable. (11) If the Scottish Ministers make a decision under subsection (10), references in sections 63A and 63B to a person who is liable under this section are to be read as references to the person’s estate. (12) The Scottish Ministers may by regulations specify the persons, or categories of persons, who are included within the meaning of “the individual’s representative” for the purpose of this section.

.

• (3) After section 63 insert—

(63A) (1) For the avoidance of doubt, a person’s liability under section 63 cannot be greater than the difference in value between— (a) the assistance that was given, and (b) the assistance (if any) that would have been given had the error not been made. (2) If the assistance was given in a form other than money, its value for the purposes of this section is what giving it cost the Scottish Ministers (excluding any administration costs). (63B) (1) Having made a decision that a person is liable under section 63, the Scottish Ministers must inform the person— (a) of the decision, (b) of the reasons for it, (c) of the person’s right under section 69A to request that the Scottish Ministers review the decision, and (d) that the person will have the right under section 69F(1)(b) to appeal to the First-tier Tribunal against the decision should the Scottish Ministers fail to deal with a request for a review within the period allowed for review. (2) The Scottish Ministers must fulfil their duty under subsection (1) in a way that leaves the person with a record of the information which the person can show to, or otherwise share with, others.

.

• (4) Section 64 is repealed.

• (5) In section 65 (consideration for debtor’s circumstances), in subsection (2), for “individual” substitute “person”.

Liability of individual’s estate

12

• (1) The 2018 Act is modified as follows.

• (2) In section 69 (liability where assistance given for period after death), in subsection (1), for “under section 24” substitute “, in the performance of a function conferred by virtue of this Part,”.

Assistance given in error: reviews and appeals

13

• (1) The 2018 Act is modified as follows.

• (2) After section 69 insert—

(69A) (1) A person may request that the Scottish Ministers review their decision after being informed (in accordance with section 63B) of a decision by the Ministers of the person’s liability. (2) A request for a review under subsection (1) is valid only if the conditions set out in the following subsections are satisfied— (a) subsection (3), and (b) subsection (4). (3) The condition referred to in subsection (2)(a) is satisfied if the request is made in such form as the Scottish Ministers require. (4) The condition referred to in subsection (2)(b) is satisfied if— (a) the request is made before the end of the period prescribed by the Scottish Ministers in regulations, or (b) in a case where the request is made after that period has ended— (i) if the request is made before the end of the day that falls one year after the day on which the person is informed in accordance with section 63B of the decision, that person has a good reason for not requesting a review sooner (see section 69B), or (ii) if the request is made after the period mentioned in sub-paragraph (i) has ended, there are exceptional circumstances justifying why the request was not made sooner (see section 69B). (5) The Scottish Ministers must publicise any requirements for the time being set under subsection (3). (6) If the Scottish Ministers decide that something purporting to be a request for a review does not satisfy the condition in subsection (3), they must inform the person who purported to make the request of— (a) the decision, (b) the reasons for it, and (c) the person’s right to appeal under section 69J. (69B) (1) It is for— (a) the Scottish Ministers, or (b) on appeal under section section 69J, the First-tier Tribunal for Scotland, to decide whether, for the purpose of section 69A(4)(b)(i), a person has a good reason for not requesting a review sooner. (2) Having made a decision under subsection (1), the Scottish Ministers must inform the person concerned— (a) of the decision, and (b) if the decision is that the person has no good reason for not requesting a review sooner, of— (i) the reasons for the decision, and (ii) the person’s right to appeal under section 69J. (3) It is for— (a) the Scottish Ministers, or (b) on appeal under section section 69J, the First-tier Tribunal for Scotland, to decide whether, for the purpose of section 69A(4)(b)(ii), there are exceptional circumstances justifying why a request for review was not made sooner. (4) Having made a decision under subsection (3), the Scottish Ministers must inform the person concerned— (a) of the decision, and (b) if the decision is that there are no exceptional circumstances justifying why a request for review was not made sooner, of— (i) the reasons for the decision, and (ii) the person’s right to appeal under section 69J. (69C) (1) On being requested under section 69A to review a decision that a person is liable under section 63, the Scottish Ministers are to review that decision. (2) The Scottish Ministers must aim to complete the review within the period allowed for review. (3) If the Scottish Ministers complete the review (whether or not within the period allowed for review), section 69D applies. (4) If the Scottish Ministers fail to complete the review within the period allowed for review— (a) section 69E applies, and (b) their duty to complete the review continues unless the person brings an appeal under section 69F. (5) If an appeal under section 69F is subsequently withdrawn, the duty of the Scottish Ministers to complete the review applies again and continues unless the appeal is reinstated. (6) The period allowed for review is to be prescribed by the Scottish Ministers in regulations. (7) The reference in subsection (1) to a request under section 69A is to a request that is valid according to subsection (2) of that section. (69D) (1) Having completed a review under section 69C, the Scottish Ministers must— (a) inform the person who requested the review— (i) of the outcome of the review, (ii) of the reasons for that outcome, (iii) of the person’s right to appeal to the First-tier Tribunal under section 69F against the outcome of the review, (iv) in circumstances where the person was previously issued with a notice under section 69E, that the person no longer has the right to appeal to the First-tier Tribunal against the decision under section 63 which prompted the request for a review, (b) provide the person with a form that the person can complete and submit to the Scottish Ministers in order to bring an appeal against the outcome of the review. (2) The Scottish Ministers must fulfil their duty under subsection (1)(a) in a way that leaves the person with a record of the information which the person can show to, or otherwise share with, others. (69E) (1) Having failed to complete a review under section 69C within the period allowed for review, the Scottish Ministers must— (a) inform the person— (i) that the review has not been completed within the period allowed, (ii) that the person therefore has the right to appeal to the First-tier Tribunal against the decision under section 63 which prompted the request for a review, (iii) that the Scottish Ministers will continue to consider the request for a review unless the person brings an appeal as mentioned in sub-paragraph (ii), (iv) that if the person brings an appeal as mentioned in sub-paragraph (ii) but subsequently withdraws that appeal, the Scottish Ministers will again consider the request for a review, and (v) that if the review is completed and a notice issued under section 69D, the person’s right to appeal to the First-tier Tribunal mentioned in sub-paragraph (ii) will end, and (b) provide the person with a form that the person can complete and submit to the Scottish Ministers in order to bring an appeal against the decision under section 63. (2) The Scottish Ministers must fulfil their duty under subsection (1)(a) in a way that leaves the person with a record of the information which the person can show to, or otherwise share with, others. (69F) (1) A person may appeal to the First-tier Tribunal for Scotland— (a) against the outcome of a review under section 69C, or (b) in a case where subsection (2) applies, against the decision under section 63 referred to in that subsection. (2) This subsection applies where— (a) having been informed of a decision under section 63 of the person’s liability, the person has made a request for a review under section 69A, (b) the period allowed for review has ended, and (c) the Scottish Ministers have yet to complete a review under section 69C in consequence of that request. (69G) (1) In order to bring an appeal under section 69F, a person must submit to the Scottish Ministers the form provided under section 69D or (as the case may be) 69E. (2) On receiving a form that they provided under section 69D or 69E, the Scottish Ministers must send— (a) the form, and (b) the information held by them that they used to make the decision which is the subject of the appeal, to the First-tier Tribunal. (3) Having complied with subsection (2), the Scottish Ministers must inform the person to whom the decision in question relates that they have done so. (4) In this section, references to a form include a copy of a form. (5) For the avoidance of doubt, the form that the Scottish Ministers provide under section 69D or 69E need not be a physical form. (6) Scottish Tribunal Rules providing for the form and manner in which an appeal under section 69F is to be brought may not displace the effect of subsection (1), but this section is otherwise without prejudice to what may be provided under any power to make Scottish Tribunal Rules. (69H) (1) An appeal under section 69F— (a) may be brought without the First-tier Tribunal’s permission if an appeal application is made within the period of 31 days beginning with the day the relevant event occurred, (b) may be brought only with the First-tier Tribunal’s permission (in accordance with subsection (3)) if an appeal application is made after the period mentioned in paragraph (a) but still within the period of one year beginning with the day the relevant event occurred, (c) may be brought only with the First-tier Tribunal’s permission (in accordance with subsection (4)) if an appeal application has not been made within the period of one year beginning with the day the relevant event occurred. (2) In subsection (1)— (a) “the relevant event” means— (i) in the case of an appeal against the outcome of a review under section 69C, the person who requested the review being informed of the outcome in accordance with section 69D, (ii) in the case of an appeal against a decision under section 63, the person to whom the decision relates being informed (in accordance with section 69E) that the person has the right to appeal against it, (b) an appeal application is made when a form, that relates to the decision in question and has been completed to the extent that Scottish Tribunal Rules require, is received by the Scottish Ministers having been submitted in accordance with section 69G(1). (3) The First-tier Tribunal may give permission under subsection (1)(b) for an appeal to be brought only if it is satisfied that there is a good reason for the application not having been made sooner. (4) The First-tier Tribunal may give permission under subsection (1)(c) for an appeal to be brought only if it is satisfied that there are exceptional circumstances justifying why the application was not made sooner. (5) Any provision of Scottish Tribunal Rules that would (but for this subsection) have the effect of preventing an appeal being brought by virtue of subsection (1)(c) is to be disregarded to the extent that it would have that effect. (69I) In an appeal under section 69F, the First-tier Tribunal may— (a) uphold the decision under section 63 or (as the case may be) the outcome of the review under section 69C, or (b) make its own determination of the person’s liability under section 63. (69J) (1) A person may appeal to the First-tier Tribunal for Scotland against a decision by the Scottish Ministers— (a) to reject something purporting to be a request for a review by that person (see section 69A(6)), (b) that a person has no good reason for not requesting a review sooner (see section 69B(1)(a)), (c) that there are no exceptional circumstances justifying why a request for review was not made sooner (see section 69B(3)(a)). (2) An appeal under this section— (a) may be brought without the First-tier Tribunal’s permission within the period of 31 days beginning with the day the person was informed of the decision in accordance with this Act, (b) may be brought only with the First-tier Tribunal’s permission (in accordance with subsection (3)) after the period mentioned in paragraph (a) but still within the period of one year beginning with the day the person was informed of the decision in accordance with this Act, (c) may be brought only with the First-tier Tribunal’s permission (in accordance with subsection (4)) after the end of the period of one year beginning with the day the person was informed of the decision in accordance with this Act. (3) The First-tier Tribunal may give permission under subsection (2)(b) for an appeal to be made only if it is satisfied that there is a good reason for the appeal not having been made sooner. (4) The First-tier Tribunal may give permission under subsection (2)(c) for an appeal to be brought only if it is satisfied that there are exceptional circumstances justifying why a request for review was not made sooner. (5) Any provision of Scottish Tribunal Rules that would (but for this subsection) have the effect of preventing an appeal being brought by virtue of subsection (2)(c) is to be disregarded to the extent that it would have that effect. (6) In an appeal under this section, the First-tier Tribunal may— (a) uphold the decision, or (b) set aside the decision and decide— (i) in the case of an appeal against a decision mentioned in subsection (1)(a)— (A) that the request satisfied the condition in section 69A(3), or (B) that further information is required in order for the request to satisfy the condition in section 69A(3), (ii) in the case of an appeal against a decision mentioned in subsection (1)(b), that a person has a good reason for not requesting a review sooner, (iii) in the case of an appeal against a decision mentioned in subsection (1)(c), that there are exceptional circumstances justifying why a request for review was not made sooner. (7) A decision by the First-tier Tribunal about— (a) the outcome of an appeal under this section, or (b) whether to give permission under subsection (2)(b) or (2)(c) for an appeal to be brought, is final. (8) Accordingly (and without prejudice to the generality of subsection (7)), any such decision by the First-tier Tribunal may be neither— (a) reviewed under section 43 of the Tribunals (Scotland) Act 2014, nor (b) appealed against under section 46 of that Act. (69K) (1) Following a decision of the First-tier Tribunal under section 69J(6)(b)(i)(A) that a request for review satisfied the condition in section 69A(3), the Scottish Ministers must complete a review under section 69C. (2) Following a decision of the First-tier Tribunal under section 69J(6)(b)(i)(B) that further information is required for the request to satisfy the condition in section 69A(3), the Scottish Ministers— (a) must seek that further information, and (b) if— (i) that information is received, must complete a review under section 69C, or (ii) if that information cannot be obtained, may make a further decision of the type referred to in section 69A(6). (3) Following a decision of the First-tier Tribunal under paragraph (ii) or (iii) of section 69J(6)(b), the Scottish Ministers must complete a review under section 69C. (69L) (1) Subsection (2) applies in relation to the references in sections 69A, 69H and 69J to someone being informed of something by the Scottish Ministers in accordance with a provision of this Act. (2) Where, in order to fulfil their duty to inform a person of something, the Scottish Ministers send information— (a) through the postal service to the last known address the Scottish Ministers have for the person, or (b) by email to the email address most recently provided to the Scottish Ministers by the person for the purposes of this Act, the person is to be taken to have received the information 48 hours after it is sent by the Scottish Ministers unless the contrary is shown.

.

Assistance given in error: deductions from other assistance

14

• (1) The 2018 Act is modified as follows.

• (2) In schedule 2 (carer’s assistance regulations)—

• (a) in paragraph 10(b)—

• (i) the words “section 63” become sub-paragraph (i),

• (ii) after that sub-paragraph insert—

(ii) provision corresponding to section 63 made by regulations under section 79.

,

• (b) in paragraph 11(3), after “63” insert “, or provision corresponding to section 63 made by regulations under section 79,”.

• (3) In schedule 5 (disability assistance regulations)—

• (a) in paragraph 15(b)—

• (i) the words “section 63” become sub-paragraph (i),

• (ii) after that sub-paragraph insert—

(ii) provision corresponding to section 63 made by regulations under section 79.

,

• (b) in paragraph 17(3), after “63” insert “, or provision corresponding to section 63 made by regulations under section 79,”.

• (4) In schedule 7 (employment-injury assistance regulations)—

• (a) in paragraph 12(b)—

• (i) the words “section 63” become sub-paragraph (i),

• (ii) after that sub-paragraph insert—

(ii) provision corresponding to section 63 made by regulations under section 79.

,

• (b) in paragraph 13(3), after “63” insert “, or provision corresponding to section 63 made by regulations under section 79,”.

• (5) In schedule 9 (housing assistance regulations)—

• (a) in paragraph 11(b)—

• (i) the words “section 63” become sub-paragraph (i),

• (ii) after that sub-paragraph insert—

(ii) provision corresponding to section 63 made by regulations under section 79.

,

• (b) in paragraph 12(3), after “63” insert “, or provision corresponding to section 63 made by regulations under section 79,”.

Part 5 — Appointees

Power to make provision in relation to appointments made by a Minister of the Crown

15

• (1) The 2018 Act is modified as follows.

• (2) After section 85E insert—

(85F) (1) The Scottish Ministers may by regulations make provision for an appointed person to be treated as though appointed by the Scottish Ministers under section 85A or 85B to act on behalf of that individual. (2) In this section “appointed person” means a person appointed by a Minister of the Crown to act on behalf of an individual who is or may be eligible to receive assistance by virtue of this Act. (3) Regulations under subsection (1) are to— (a) specify— (i) the category of individuals to whom the regulations apply, (ii) the appointed persons to whom the regulations apply, by reference to the provision under which they were appointed, and (iii) the forms of assistance in relation to which paragraph (b) is to apply, and (b) provide that where an individual to whom the regulations apply is or may be eligible to receive a specified form of assistance, the Scottish Ministers must, as soon as reasonably practicable— (i) consider whether the conditions for making an appointment under section 85A or 85B are met in relation to the individual, (ii) consider whether to terminate the appointment that is treated as having been made by virtue of the regulations, and terminate it if they consider appropriate, (iii) if they have terminated an appointment under sub-paragraph (ii), appoint a person under section 85A or 85B to act on behalf of the individual if they consider it appropriate to do so.

.

Liability of appointees under sections 85A and 85B of the 2018 Act

16

• (1) The 2018 Act is modified as follows.

• (2) After section 85F (inserted by section 15(2)) insert—

(85G) (1) Where a person appointed under section 85A or 85B (or treated as being so appointed as a result of regulations made under section 85F) uses any funds of the child or (as the case may be) other individual for whom the person is acting— (a) outwith the person’s authority or power to act under that appointment, (b) in breach of any duty or responsibility arising from that appointment, (c) after the person’s appointment is terminated, that person is liable to repay those funds to the child or other individual. (2) A person appointed under section 85A or 85B (or treated as being so appointed as a result of regulations made under section 85F) is not liable under subsection (1) where the person has— (a) acted reasonably and in good faith, or (b) failed to act and the failure was reasonable and in good faith.

.

Part 6 — Uprating assistance for inflation

Duty to uprate assistance for inflation

17

• (1) The 2018 Act is modified as follows.

• (2) In section 86A(3)(a) (duty to consider effects of inflation)—

• (a) the “or” following sub-paragraph (i) is repealed,

• (b) for “but” following sub-paragraph (ii) substitute “or”,

• (c) after sub-paragraph (ii), insert—

(iii) section 93A, but

.

• (3) In section 86B (duty to uprate certain types of assistance)—

• (a) in subsection (1)—

• (i) for “77” substitute “86A”,

• (ii) the words from first “prescribed” to “2020” are repealed,

• (iii) the words “prescribed in those regulations” are repealed,

• (b) in subsection (4), the words from “— “carer’s”” to “34” are repealed.

• (4) The title of section 86B becomes “Duty to uprate assistance”.

Part 7 — Information for audit

Information for audit of social security system

18

• (1) The 2018 Act is modified as follows.

• (2) After section 87A insert—

(87B) (1) The Scottish Ministers may request an individual who is entitled to assistance by virtue of this Act to provide, within such period as Ministers specify in the request, information about— (a) the individual’s entitlement to assistance, and (b) the payment of assistance to the individual. (2) A request under subsection (1) may only be made for the purposes of— (a) auditing the monetary value of error and fraud in the Scottish social security system, and (b) carrying out corrections of apparent errors and investigations into potential fraud (and other activities connected to auditing). (3) Information received in response to a request under subsection (1) may only be used for the purposes mentioned in subsection (2). (4) The Scottish Ministers may require the response to a request under subsection (1) to take the form of— (a) an interview in person, (b) a telephone call or a video call, (c) in circumstances prescribed by the Scottish Ministers in regulations, a written response, or (d) such other form of response prescribed by the Scottish Ministers in regulations. (5) The Scottish Ministers may by regulations prescribe categories of individuals who are not to be requested to provide information under subsection (1). (6) Before making regulations under subsection (5), the Scottish Ministers must consult publicly on the categories of individuals who are not to be requested to provide information under subsection (1). (7) If an individual fails to provide the requested information by the end of the period specified in the request under subsection (1), the Scottish Ministers may issue a decision to suspend the assistance to the individual in accordance with regulations under section 51(2)(aa). (8) Where the Scottish Ministers issue a decision to suspend the assistance to the individual under subsection (7) they must, at the same time, make a further request under subsection (1) that the individual provide them with the information within such further period as they specify. (9) Subsections (7) and (8) may apply more than once in respect of the same individual. (87C) (1) An individual who has received a request for information under section 87B(1) may, before the end of the period prescribed by the Scottish Ministers in regulations, ask the Scottish Ministers to withdraw the request. (2) The Scottish Ministers may only withdraw the request for information if the individual has a good reason for it to be withdrawn. (3) It is for the Scottish Ministers to decide whether, for the purpose of subsection (2), an individual has a good reason for the request to be withdrawn. (4) The Scottish Ministers must make a decision under subsection (3) before the end of the period prescribed by the Scottish Ministers in regulations. (5) Regulations under subsection (4) may also make provision about cases where the Scottish Ministers fail to make a decision under subsection (3) within the period prescribed in the regulations. (6) The Scottish Ministers’ decision under subsection (3) is final. (7) Having made a decision under subsection (3), the Scottish Ministers must inform the individual concerned— (a) of the decision, (b) of the reasons for it, (c) that the decision is final, and (d) if the decision is that there is a good reason for withdrawal, that the request for information is withdrawn. (8) The Scottish Ministers must fulfil their duty under subsection (7) in a way that leaves the individual with a record of the information which the individual can show to, or otherwise share with, others. (9) Where the Scottish Ministers decide under subsection (3) that an individual has a good reason for withdrawal, they must withdraw the request for information. (87D) (1) The Scottish Ministers must comply with an individual’s wish to have another person (“a supporter”) present during any interview, telephone call, video call, drafting of a written response or any other form of provision of a response relating to a request to provide information under section 87B(1), unless the wish is unreasonable. (2) The Scottish Ministers’ duty under subsection (1) includes ensuring that any person acting on their behalf complies with such a wish, unless the wish is unreasonable. (3) The role of a supporter is to support the individual during the interview, telephone call, video call, drafting of a written response or (as the case may be) other form of provision of a response, and includes making representations on the individual's behalf. (4) Nothing in this section is to be read as requiring the Scottish Ministers to provide or pay for a supporter. (87E) (1) Every individual to whom subsection (3) applies has a right of access to independent advocacy in connection with the individual’s engagement with the process for a request for information under section 87B(1). (2) It is the duty of the Scottish Ministers to ensure that independent advocacy services are available to the extent necessary for that right to be exercised by the individuals who have it. (3) This subsection applies to an individual if, owing to a disability, the individual requires an advocate’s help to engage effectively with the process for a request for information under section 87B(1). (4) For the purposes of this section— (a) “advocacy services” means services of support and representation that are made available for the purpose of enabling an individual to whom they are provided to have as much control of, or capacity to influence, the individual’s engagement with the process of a request for information under section 87B(1) as is, in the circumstances, appropriate, (b) advocacy services are independent if they are provided by a person other than the Scottish Ministers.

.

• (3) In schedule 11 (suspension of assistance), in paragraph 1(1)(a), after “54(1A)” insert “or 87B(7)”.

Part 8 — Recovery from compensation payments

Recovery of value of assistance from compensation payments

19

• (1) The 2018 Act is modified as follows.

• (2) After section 94 insert—