16. Residency and cross-border issues
Proposals for residency and 'habitual residence'
16.1 The Scottish Government set out its proposals for residency and 'habitual residence' in Part 3 of the consultation document.
Question - Should Scottish benefits only be payable to individuals who are resident in Scotland? Please explain why.
|Table 16.1 Should Scottish benefits only be payable to individuals who are resident in Scotland?|
|All respondents answering||102||89%||13||11%||115|
Note: A full breakdown of responses by respondent group is included in Annex 2 (available to download separately as part of this publication).
16.2 A total of 115 respondents answered the closed part of this question. Of those responding, the majority (89%) thought that Scottish benefits should only be payable to individuals resident in Scotland. Individuals were slightly more likely than organisations to answer 'yes'. Although a substantial proportion of organisations (21%) actually disagreed, there was overall support from most respondent groups.
16.3 There were 90 respondents who explained their answer (50 organisations and 40 individuals).
Reasons for answering 'yes'
16.4 The main reasons people gave for only paying benefits to individuals resident in Scotland were:
- Best value - Some respondents felt that this was the fairest way to allocate benefits with a limited budget, minimizing the risk of fraud and abuse within the system.
- Reducing complexity - Some respondents felt that this would keep the system as simple as possible which would make it easier to administer.
"If, as suspected, the Scottish benefit system becomes fairer than the UK version, it will be a popular place to claim benefits from. There will have to be checks on where a person 'usually resides' in order to be fair on the people who do actually live here."
16.5 A few respondents, largely local authority respondents, felt that residency had a clear relationship with the tax base for Scotland, and access to benefits.
"Individuals who are residing in Scotland should be able to access Scottish benefits - those living out with Scotland are not part of the tax base."
16.6 Some who said 'yes' also suggested some exceptions or time limits. A few suggested residency time limits (from 12 months to 5 years). Others suggested exceptions for:
- certain types of benefit (disability benefits);
- some people (asylum seekers, refugees, migrant workers, people working offshore or overseas, and carers or cared for moving across borders); and
- some situations (temporary absence).
16.7 A few suggested that there was a need to think carefully about how this would apply for certain groups such as:
- students (both from the UK and further afield);
- people living in Scotland but working elsewhere in the UK;
- people with two homes;
- people spending time abroad for medical reasons;
- service personnel;
- merchant sea people;
- people in tied accommodation (home provided with their employment); and
- people living and working overseas.
"If the carer lives in Scotland and/or undertakes their caring role in Scotland, they should be entitled to social security in Scotland. However, there will be individual situations that are more complex than this, and a new social security system should be able to exercise discretion if required."
Carers Trust Scotland
"The definition of a 'Scottish Claimant' will be of particular relevance in Scottish Borders where people often move back and forward across the border to live and work."
Scottish Borders Council
Reasons for answering 'no'
16.8 Some who said that benefits should not only be payable to individuals who are resident in Scotland provided comments. This included organisations across a range of respondent groups, and individual respondents. These respondents felt that a more considered and robust approach was required, particularly in relation to two areas.
16.9 Firstly, a few respondents highlighted that parts of DLA, PIP and Attendance Allowance could currently continue to be paid to EU residents, and that removing this would penalize people as a result of the benefit becoming devolved. One respondent suggested considering whether more components of disability allowance should be paid to non-residents, for example, the mobility components of DLA and PIP.
16.10 Secondly, a few respondents highlighted that the main issue was likely to be people living in other parts of the UK. A few commented on cross border issues, such as a carer living in Scotland but caring for someone in England, which would require strong and clear joint working arrangements.
16.11 A small number of individual respondents simply stated that if people had contributed to the Scottish economy, they should be eligible for benefits regardless of where they lived.
Question - What are your views on the 'habitual' residence test currently used in the UK by DWP?
16.12 In total, 85 respondents commented on this (51 organisations and 34 individuals). Many felt that the 'habitual' residence test currently used by DWP was reasonable. However, some had concerns about the current test. The main concerns were that it was:
- too restrictive - with some feeling it had been tightened to reduce eligibility in recent years;
- complex and confusing - with some finding it unclear, not transparent and subjective;
- flawed in application - with some feeling it to be poorly understood and administered; and
- not customer focused - with some finding it unfair, racist, judgemental and based on trying to exclude people.
"Although isolated cases, people do return from other countries to provide care and the social security system should be flexible enough to recognise such instances to ensure that these carers are not left without support."
"It must be recognised that BME women in particular often leave the country for more than four weeks at a time in order to visit friends and family. They should not be penalised and have to reapply for benefits if they have informed the social security system that they will be out of the country for a specific length of time and for a specific reason."
Scottish Women's Convention
16.13 Whether people liked the current system or not, some indicated that it would be difficult to have a different test used in Scotland, as this might result in inconsistencies and people falling through the gaps. Some indicated that consistency would be particularly important where people are applying for both devolved and reserved benefits, and where there were cross border claims.
"The current 'habitual' residence test is consistent and long established - to apply a different test for those benefits devolved to Scotland would surely cause confusion and some unhelpful results e.g. DWP rule customer not habitually resident for Universal Credit and Scottish social security agency rule habitually resident for Disability Benefits?"
16.14 However, a few suggested different tests could be used, such as:
- payment of council tax;
- the residence test previously applied to disability benefits and carers allowance, which was seen as less detrimental to people from abroad; or
- introducing more flexibility into the habitual residence test, for example, to allow for transitions across the border between Scotland and England.
"We strongly recommend that the Scottish Government use the 'ordinary residence' test for social security entitlements to ensure equality of access for all New Scots on the basis of non-discrimination. The courts have found that the application of residence criteria to social security entitlements does not have a strong legal or social benefit or justification."
Scottish Refugee Council
Question - Are there other issues that the Scottish Government should take into account when it comes to residency rules?
16.15 There were 69 responses to this question (34 organisations and 35 individuals).
16.16 Some commented on cross border issues within the UK, and how to ensure that individuals were claiming only in Scotland or other parts of the UK. Some talked about what would happen if people owned property in both Scotland and other countries, and whether people may want to say their main residency was in Scotland if the benefits system was more generous in Scotland than other parts of the UK. A few highlighted that there could be disputes about residency in the transition to the new system, and that this was most likely to affect disabled people and carers. These respondents felt that these individuals should receive interim payments while disputes about residency are resolved so that they are not disadvantaged. A few individuals suggested that anyone receiving benefits in Scotland should have tax residency in Scotland.
16.17 A few highlighted issues around the distinction between habitual and ordinary residence, with a few suggesting that it may be more appropriate to base benefit payments on ordinary residence which could be simpler.
16.18 A few local authority respondents and poverty, disability and advice organisations felt that the 'past presence' test should be removed. One suggested that the past present residence test for refugees and their families had been found to amount to unlawful indirect discrimination (contrary to the provisions of Article 28 of EU Directive 2004/83/EC and Article 14 of the ECHR). A few also said more broadly that the position of refugees, asylum seekers and people fleeing violence needed to be considered, with a few saying they believe support should be extended to these groups.
"The current 'past presence' test for UK disability benefits, which requires presence in the UK for 104 out of the last 156 weeks) is too restrictive and should be reconsidered."
The Poverty Alliance
16.19 The Scottish Government set out its proposals for cross-border issues in Part 3 of the consultation document.
Question - What factors should Scottish Government consider in seeking to coordinate its social security system with other social security systems in the UK?
16.20 There were 79 responses to this question (47 organisations and 32 individuals).
16.21 Many felt that it was important that there were clear links between the Scottish Government and UK Government in relation to devolved and reserved benefits. Many felt that, in theory, it would be simplest to use the same systems and rules. However, noted that in the current political landscape this may leave the Scottish Government open to applying principles at odds with its own. Some said that it was important not to prioritise co-ordination over best serving Scotland's citizens. Respondents reiterated their desire to have an inclusive, respectful and holistic system in Scotland, and cautioned that while co-ordination was needed, it was important not to copy a situation that exists already if it may not work for Scotland. Some felt that there was a need for a high level of inter-governmental exchange, to make sure that there is clarity about which government is responsible for each case; that the Scottish system doesn't lead to financial detriment in relation to reserved benefits; and that there is a transition period or tapering of benefits in moving from one system to another in the UK.
16.22 Some talked about the need for effective data sharing, using appropriate IT systems. These respondents felt that it was important to have joint systems and close communication between Scotland and the rest of the UK. Some talked about cross border issues, particularly where a carer and the person they care for live on either side of the Scottish border with England, or where an individual works on one side and lives on the other side of the border. These respondents felt that there needed to be clarity, but also that it was important to recognize that communities existed across national boundaries and that individual needs are paramount in each case.
16.23 A few respondents emphasised the need for interim payments while residency disputes are resolved.
16.24 A few mentioned the likely increase in complexity as the UK withdraws from the EU, and the need to review plans based on the way in which this happens - with particular impact expected around EU co-ordination rules for social security, and reciprocal agreements for freedom of movement. A few mentioned that it might be useful to explicitly mention considering immigration status, as a way of future proofing the approach.
Question - How can the Scottish Government ensure that no-one either falls through the cracks or is able to make a 'double-claim'?
16.25 In total, 80 respondents answered this question (40 organisations and 40 individuals).
16.26 A large number of respondents emphasised the importance of data sharing and joint working between the Scottish Government, the new social security agency, the UK Government and the DWP. A range of suggestions were provided including:
- requiring proof of residence information like utility bills, bank account details and photo ID;
- using people's NI number as a consistent check;
- cross checking information with other databases such as electoral roles;
- introducing a unique UK claimant reference, which would then have a Scottish level code within this - to clearly link UK and Scottish benefits;
- applying for Scottish benefits through the UK government site;
- using some other form of cross reference - some suggested biometric checks;
- having triggers for checks - for example, when someone changes address; and
- using weekly checks to make sure people don't appear in two systems, to avoid any problems running for longer than necessary.
16.27 Overall, there was a strong feeling that it was government's responsibility to identify double claims, and there should be a presumption of honesty and entitlement to help reduce negative stereotypes. Some felt it was more of a concern if people fell through the cracks than if there was a small amount of overlap. A few suggested that the Scottish Government should undertake risk assessments identifying who could fall through the gaps, and work with the UK government and other stakeholders to identify joint solutions. A few emphasised the importance of advice and information in helping people to understand their rights and entitlements.
16.28 A few pointed out that there were EU co-ordination rules in place to prevent overlapping between benefits paid by different states (but that these were undeniably complex). A few felt that it wasn't possible to make sure no-one fell through the gaps or made a double-claim, and that no system was completely fail safe.
"This is complex and will rely on sound relationships between agencies as well as reciprocal agreements."
Scottish Borders Council
Email: Trish Brady-Campbell