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1
2025UT25
Ref: UTS/AS/24/0124
DECISION OF
Lady Carmichael
ON AN APPEAL
IN THE CASE OF
Social Security Scotland,
per Scottish Government Legal Directorate
Appellant
- and -
AS
Respondent
FTS Case Reference: FTS/SSC/AE/23/00517
22 April 2025
Decision
The Upper Tribunal for Scotland allows the appeal and re-makes the decision of the First-tier
Tribunal for Scotland ("FTS") to the extent of specifying that the respondent's entitlement to a
Scottish Child Payment in respect of child C began on 8 May 2023.
Reasons
Introduction
1. The respondent has six children, A (born in 2020), B (born in 2018), C (born in 2015), D
(born in 2014), E (born in 2010) and F (born in 2008). On 26 December 2020 she
submitted an application for the Scottish Child Payment ("SCP") in respect of A, B and C.
At that time the Scottish Child Payment Regulations 2020 ("the regulations") made
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provision for assistance for eligible individuals who were responsible for a child under
the age of 6 years. All of A, B and C were under the age of 6 years, and the respondent
was awarded SCP with effect from 15 February 2021, in accordance with regulation 25 of
the regulations.
2. At that time, D, E and F were more than 6 years old, so the respondent was not eligible for
assistance in respect of any of them.
3. C's sixth birthday was on 21 August 2021. On 22 June 2021 the appellant wrote to the
respondent explaining that the award of SCP would reduce when C reached the age of 6.
The respondent carried out a determination without application following a change of
circumstances in accordance with paragraph 10(1) of the Schedule to the regulations.
The award ceased to include C from 22 August 2021. The appellant did not send a letter
to the respondent informing her of that determination.
4. By virtue of the Social Security (Miscellaneous Amendment and Transitional Provision)
(Scotland) Regulations 2022, SCP was extended to eligible individuals who were
responsible for a child under the age of 16, with effect from 14 November 2022.
5. On 7 June 2023 the respondent applied for SCP in relation to all six children. The
appellant made a determination without application, by letter dated 23 June 2023.
Because the two youngest children, A and B, were already the subject of an award, the
application was treated as a notification that she was responsible for the four children
who were over the age of 6 years, in accordance with paragraph 11(1) of the schedule to
the regulations. The appellant awarded SCP for C, D, E and F with effect from 8 May
2023.
6. The respondent requested a redetermination on 27 June 2023. She submitted that the
backdating of SCP for the four older children should have been to 14 November 2022.
The appellant redetermined the question, but reached the same conclusion. The
respondent appealed to the FTS.
7. The FTS found that the respondent was entitled to SCP in respect of C from 14 November
2022, and from 8 May 2023 in respect of D, E and F. The appellant appeals, with
permission from the FTS, against the decision of the FTS regarding the date to which the
award in respect of C should be backdated. The question in this appeal is as to the
correct construction of the regulations.
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The statutory provisions
8. The regulations were made under powers conferred by section 79 of the Social Security
(Scotland) Act, which provides that the Scottish Ministers may by regulations provide for
financial assistance to be given to an individual who (a) is entitled to a reserved benefit,
and (b) appears to the Scottish Ministers to require financial assistance (in addition to any
amount the individual receives by way of reserved benefit) for the purpose, or one of the
purposes, for which the benefit is being provided. "Reserved benefit" is defined in
section 79(3).
9. Regulation 18 sets out criteria for eligibility for SCP:
"18. An individual is eligible for a Scottish child payment in respect of a child if--
(a) the individual has made an application for the payment (or an application is treated as
having been made by the individual by virtue of a provision in the schedule requiring the
Scottish Ministers to make a determination without application in the individual's case),
(b) the child is under 16 years of age on the day the application is made,
(c) no other individual has received, or is due to receive, a Scottish child payment in
respect of the child and the period that the payment will cover (other than in
circumstances where paragraph 10(1)(b) of the schedule applies),
(d) the individual is ordinarily resident in Scotland on the day the application is made,
(e) the individual is responsible for the child on the day the application is made, and
(f) the individual has been awarded, for the day the application is made (or for a period
or universal credit assessment period which includes that day), assistance of a kind
specified in regulation 14."
10. Regulation 18A makes provision for when entitlement to assistance is to begin:
"Where a determination is made that an individual is entitled to a Scottish child payment,
the date on which entitlement begins is the date on which the application is made or
treated as made in accordance with regulation 5."
11. Regulation 5 provides:
"A reference to the day on which an application is made means the day on which an
application is received by the Scottish Ministers, or, as the context may require, the day
on which the application is treated as having been made by virtue of regulation 25 or the
schedule."
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12. In the context of this appeal, it is paragraph 11 of the schedule that is of relevance. It
provides:
"11.-- (1) The Scottish Ministers are to make a determination of an individual's
entitlement to a Scottish child payment in respect of a child (without receiving an
application) where--
(a) the individual has been properly awarded a Scottish child payment in respect
of another child and has an ongoing entitlement to that payment (see regulation
19),
(b) the individual notifies the Scottish Ministers that the individual has
responsibility for the child (see regulation 9), and
(c) it appears to the Scottish Ministers that, unless there is a change in
circumstances, the individual is likely to be entitled to a Scottish child payment in
respect of the child.
(2) In making a determination required by sub-paragraph (1), the Scottish Ministers may
use such of the information they have obtained in connection with the award referred to
in sub-paragraph (1)(a) as appears to them to be relevant.
(3) Where a determination is to be made by virtue of this paragraph, references in these
Regulations to the day the application is made are to be read as references to--
(a) the day on which notification is given under sub-paragraph (1)(b), or
(b) where the child is under 6 years old such earlier day not more than 4 weeks
before that day on which the child was recognised to be a child for whom the
individual has responsibility in terms of an award of assistance mentioned in
regulation 12(2)(a), or
(c) where the child is 6 years old or older, such earlier day which is--
(i) not more than 4 weeks before that day on which the child was
recognised to be a child for whom the individual has responsibility in
terms of an award of assistance mentioned in regulation 12(2)(a), and
(ii) on or after 14 November 2022."
13. In order to determine when the respondent's entitlement in respect of C was to begin, it
is necessary to construe paragraph 11(3)(c), and in particular the expression:
"that day on which the child was recognised to be a child for whom the individual has
responsibility in terms of an award of assistance mentioned in regulation 12(2)(a)"
14. Regulations 9 and 12 make provision as to the meaning of being responsible for a child:
5
"9. An individual is to be regarded as responsible for a child on a day only if at least one
or more of the following statements is true
(a) the child is a dependant of the individual on that day,
(b) the child is a dependant of the individual's partner on that day.
12 (1) A child is to be regarded as a dependant of a person on a day only if
(a) paragraph (2) applies, or
(b) on that day the person is a kinship carer for the child.
(2) This paragraph applies if
(a) the person has been awarded
(i) child tax credit, child benefit or state pension credit for the day in
question (or a period that includes that day), or
(ii) universal credit for an assessment period that includes the day in
question; and
(b) the child is recognised to be a child for whom the person has responsibility in
terms of that award of assistance.
(3) It is immaterial for the purpose of this regulation that the award of assistance to that
person referred to in paragraph (2) does not include any amount in respect of the child due
to a rule that restricts the number of dependants in respect of whom the person can be
given that type of assistance."
15. The appellant contends that "that day" in paragraph 11(3)(c) is a reference to "the day on
which notification is given", where the latter expression is used in paragraph 11(3)(a).
That would mean that paragraph 11(3)(c) should be read in the following way:
"(c) where the child is 6 years old or older, such earlier day which is--
(i) not more than 4 weeks before [the day on which notification was given] on
which the child was recognised to be a child for whom the individual has
responsibility in terms of an award of assistance mentioned in regulation 12(2)(a),
and
(ii) on or after 14 November 2022."
The appellant has submitted that the effect of this reading is to empower the decision-
maker to select a day which is earlier than the date on which notification was given, but
not more than 4 weeks before that day, on which "the recognition was met." On that
reading it would not be possible to read the provision as allowing the decision-maker to
select a date more than 4 weeks earlier than the date on which an individual gave the
notification required under paragraph 11(1)(b).
16. The construction favoured by the FTS proceeded on the basis that "that day" should be
read as "the day"; child C must have been recognised as one for whom the respondent
had responsibility at the time of the initial award when she was aged less than six, but the
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earliest date for backdating, by virtue of paragraph 11(3)(c)(ii) was 14 November 2022.
At paragraphs 36, 37, 41 and 42 of its decision the FTS wrote:
"36. Paragraph 11(3)(c) is relevant because it deals with children over the age of 6.
Paragraph 11(3)(c) says that the award should run from the earlier of 4 weeks before the
day [emphasis added] when the "the child was recognised to be a child for whom the
individual has responsibility in terms of an award of assistance mentioned in Regulation
12(2)(a)".
37. Referring back to Regulation 12(2)(a) (and read shortly) that day is the date that the
appellant was recognised (presumably by the respondent) as being a person who has
been awarded a qualifying benefit (eg child tax credit etc) and the child was recognised as
being a child for whom the appellant had responsibility in terms of that award of
assistance.
[...]
41. It seemed to the Tribunal that in respect of [child C] the date of recognition of [child
C] to be a child for whom the individual has responsibility in terms of an award of
assistance mentioned in regulation 12(2)(a) was in early 2021; on that basis 4 weeks earlier
than the date of recognition would be some date in early 2021.
42. However paragraph 11(3)(c) made it clear that the award could start no earlier than
14/11/2022 which was of course the date when the age limit was increased from 6 to 16.
On that basis the date of the award in respect of [child C] starting (ie re starting) had to be
14/11/2022."
Decision
17. The respondent's eligibility for SCP depended on meeting the various conditions set out
in regulation 18. Among those were condition (a) that she had made an application, or
an application was treated as having been made by virtue of a provision in the schedule,
and condition (e) that she was responsible for the child on the day the application was
made. Her responsibility for the child fell to be determined in accordance with
regulations 9 and 12. Regulation 12(2)(b) refers to the recognition of the child as a child
for whom a person has responsibility in terms of an award of assistance referred to in
regulation 12(2)(a).
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18. The regulations acknowledge that the child may have been recognised, on a date more
than 4 weeks before the date of notification, to be a child for whom a person has
responsibility by virtue of an award of one of the benefits mentioned in regulation 12(a).
"Recognised" is not defined anywhere in the regulations. In order to construe it, it is
necessary to look at regulation 12(2). Regulation 12(2)(a) refers to a number of types of
reserved benefit. Those reserved benefits are administered by the Commissioners for His
Majesty's Revenue and Customs ("HMRC") (child tax credit, and child benefit) and the
Secretary of State for Work and Pensions ("DWP") (state pension credit and universal
credit). The benefits either relate to specific children or include a discretionary child
element which can be awarded when a claimant is responsible for a child. Recognition
of the child as one for whom the recipient of a reserved benefit has responsibility in terms
of the award of assistance of the benefit means recognition by HMRC or DWP.
19. It is unsurprising that the child should have been recognised as one for whom the person
has responsibility before the date of notification. As I have already noted, responsibility
for the child, as defined in the regulations, is a criterion for eligibility for the benefit.
The appellant provided written submissions indicating that it relies on information from
DWP and HMRC in relation to the entitlement of individuals to reserved benefits. At the
time of the decision in this case in June 2023, it used a system called Searchlight to access
that information. The system is now that the appellant receives data extracts from DWP
and HMRC.
20. The use of the expression "that day" in paragraph 11(3)(b) and (c), as opposed to the
expression "the day" in paragraph 11(3)(b) and (c), as opposed to "the day" in paragraph
11(3)(a) favours the construction proposed by the appellant. The drafter chose to use
two different expressions: "that day" and "the day". That being so, I do not conclude, as
the FTS did, that "that day" should be read as "the day". Read in context, "that day" is a
reference back to "the day on which notification is given" where that phrase appears in
paragraph 11(3)(a).
21. The consequence of that construction is that the phrase "the day the application is made"
means, so far as the award in respect of child C is concerned, the following. It is the day
on which the respondent notified the Scottish Ministers that she had responsibility for the
child, or such earlier day which is not more than 4 weeks before the date of that
notification, on which the child was recognised to be a child for whom the individual had
responsibility in terms of an award of assistance mentioned in regulation 12(2)(a). That
earlier day must fall on or after 14 November 2022.
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22. I therefore re-make the decision of the FTS to the extent of specifying that the
respondent's entitlement to a Scottish Child Payment in respect of child C began on 8
May 2023.
A party to this case who is aggrieved by this decision may seek permission to appeal to the Court of Session
on a point of law only. A party who wishes to appeal must seek permission to do so from the Upper
Tribunal within 30 days of the date on which this decision was sent to him or her. Any such request for
permission must be in writing and must (a) identify the decision of the Upper Tribunal to which it relates,
(b) identify the alleged error or errors of law in the decision and (c) state in terms of section 50(4) of the
Tribunals (Scotland) Act 2014 what important point of principle or practice would be raised or what other
compelling reason there is for allowing a further appeal to proceed.
Lady Carmichael
Member of the Upper Tribunal for Scotland
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