Devolved Social security after brexit

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In terms of social security and Brexit, most focus has been on the State Pension for UK nationals living abroad.  Eligibility for the State Pension is reserved to the UK Government and is protected – both for people already living in the European Economic Area (EEA) and for future movers.  However there many other social security issues impacted by the UK leaving the EU and EEA.

This blog takes a very brief look at how devolved benefits are affected.

What happens to social security benefits for EEA citizens living in the UK, and for UK citizens living in the EEA after Brexit?

Very broadly, people who moved between the EEA and the UK before 31December 2020 have their current citizens’ rights protected under the Withdrawal Agreement. 

People moving between Ireland and the UK are protected by the Ireland/UK Convention on Social Security.  This applies to those who moved before Brexit as well as future movers

In general, new movers from the EEA (except Ireland) to the UK will be treated in the same way as non-EEA citizens.  This will affect their access to means-tested benefits such as Universal Credit.  Access to some other benefits, including many devolved carer and disability benefits, is affected by the new Protocol on Social Security Co-ordination.

See SPICe Brexit FAQs: Citizens which also lists further reading.

Access to Universal Credit affects access to devolved benefits

Many current Scottish benefits are based on whether someone gets a qualifying benefit such as Universal Credit.  These ‘passported’ benefits include the Scottish Child Payment, Best Start Foods, Best Start Grant and Funeral Support Payment. Access to Universal Credit can be affected by whether someone is covered by the Withdrawal Agreement.

Covered by Withdrawal Agreement

People covered by the Withdrawal Agreement include those with ‘pre-settled’ and ‘settled’ status under the EU settlement scheme. UK Government regulations had initially prevented those with ‘pre-settled status’ using that as the sole residence right to access Universal Credit.   However, on 18 December 2020, the Court of Appeal quashed those regulations, finding them to be discriminatory.  By expanding eligibility to Universal Credit, this judgement also expands eligibility to those Scottish benefits which are ‘passported’ from Universal Credit.

At the time of writing, the Supreme Court has not given permission for the Department of Work and Pensions to appeal this judgement. Decisions on claims may be delayed until after the outcome of any challenge.  For further information, see this blog from CPAG.

Not covered by Withdrawal Agreement

For people not covered by the Withdrawal Agreement, changes to immigration law following Brexit mean that it will be more difficult for EEA citizens to meet the residence requirements for Universal Credit. This is because they will be treated in the same way as non-EEA citizens. This will, in turn, make it more difficult for them to access those Scottish benefits which are ‘passported’ from Universal Credit.  It is also possible that new arrivals from the EEA could have ‘no recourse to public funds.’  This would prevent them from accessing most social security benefits including those that are devolved.

Fewer benefits covered under the new Protocol on Social Security Co-ordination

The new Protocol on Social Security Co-ordination reduces access to some key devolved benefits for people moving between Scotland and the EEA:

  • Fewer benefits can be claimed by someone moving to the EEA from now on,   i.e. fewer benefits are ‘exportable’.  Personal Independence Payment, Disability Living Allowance, Attendance Allowance, Carer’s Allowance, Young Carer Grant, Carer’s Allowance Supplement and Winter Fuel Payment are all excluded from the new rules.  The only devolved benefit which is still ‘exportable’ is Industrial Injuries Disablement Benefit.
  • EEA citizens moving to Scotland from now on will not be able to use periods of residence in other states to help them qualify for the carer and disability benefits mentioned above with the exception of Industrial Injuries Disablement Benefit.

How will new Scottish benefits be treated?

Most carer and disability benefits are now devolved, although many are administered by the DWP on the Scottish Government’s behalf.  The Scottish Government is in the process of creating Scottish ‘versions’ of the devolved benefits which will be administered by Social Security Scotland.  For example, the Child Disability Payment, replacing child Disability Living Allowance, is due to start as a pilot this summer. 

The Scottish Government expects that the new Scottish disability and carer assistance benefits will be categorised in the same way as their DWP equivalents for the purposes of social security co-ordination. (See Social Security Committee 17 December 2020)

This categorisation would mean that, for people covered by the Withdrawal Agreement, the new forms of Scottish disability and carer assistance would be fully exportable.  Furthermore, people will be able to rely on previous periods of residence in EEA states to meet eligibility requirements.

However, if people are covered by the new Protocol instead of the Withdrawal Agreement then their rights are more limited.  Most DWP disability and carer benefits are specifically excluded from the new Protocol.  The Scottish Carer’s Allowance Supplement and Young Carer Grant are also excluded.  The new Specialised Committee on Social Security Co-ordination may amend the list of exclusions.  The issue arises of whether new Scottish benefits (such as the Child Disability Payment) will be added to the list and what influence the Scottish Government will have on that decision.

Further work

SPICe has commissioned Dr Simon Roberts, University of Nottingham to write three briefings on social security co-ordination and devolved benefits.  The first of these, introducing key concepts of co-ordination is available here: What is Social Security Co-ordination and why does it matter for Scotland? .  The second, looking at the impact of the withdrawal agreement is available here: The treatment of Scotland’s devolved benefits in the Withdrawal Agreement.

Camilla Kidner, Senior Researcher, Social Security