Scottish Social Security and Brexit: many complex moving parts

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Social security co-ordination was set up so that countries’ different rules on pensions and benefits do not act as barriers to the free movement of workers. It applies to many devolved Scottish benefits just as much as it does to Department for Work and Pensions (DWP) benefits. One example of how it works is that, before Brexit, a Scottish person moving to France could claim Carer’s Allowance Supplement – a devolved benefit.

Since Brexit the rules have become more complex and, for some people, more restrictive. The devolution of parts of social security creates an additional complication and raises questions about how these new Scottish benefits will work within this social security co-ordination framework.

What, if anything, can the Scottish Parliament and/or Government do about it and how will people know what their rights are?

The project

To try to disentangle all this, SPICe commissioned Dr Simon Roberts (Nottingham University) to write three briefings:

They were commissioned under the Scottish Parliament’s Academic Fellowship Scheme and presented to the previous Social Security Committee. To round off the project, a webinar with academics, Scottish Government officials, welfare rights experts and SPICe staff was held on 18 May 2021.

This blog summarises some of the key themes in the briefings and the issues raised at the seminar.

Protected cohort or not?

Anyone looking to figure out their rights in this area, needs to establish whether they are part of the ‘protected cohort’ under the Withdrawal Agreement (WA) or whether the new Social Security Protocol under the Trade and Cooperation Agreement (TCA) applies to them. This makes a huge difference to their access to social security benefits. (There are also separate agreements that cover Irish citizens, people moving to and from Gibraltar and EFTA countries).

Someone in a cross-border situation at the end of the transition period is protected under WA – for example someone moving from France to Scotland or vice versa in November 2020. If the same person delayed their move until January 2021, they would come under the TCA. It is, inevitably, ‘a lot more complicated than this’, but this is probably the simplest example.

Fewer benefits covered

Essentially, far fewer UK benefits and far fewer devolved benefits are covered by the TCA than the WA.

Dr Roberts’ briefings summarise the coverage known so far. Basically, of all the devolved benefits included in the WA, only Industrial Injuries Disablement Benefit and Severe Disablement Allowance are also included in the TCA.

Categorising benefits

Benefits are divided into three categories. For details, see Dr Roberts’ briefings, but in summary benefits can be:

Social assistance – the benefit isn’t included in Co-ordinating Regulations
Special Non-Contributory Benefit (SNCB) – some Co-ordinating Regulations apply but not all
Social security – the benefit is fully co-ordinated

Even if benefits are categorised as SNCB or social security they can still be listed as specifically excluded from the TCA. Some Scottish benefits aren’t on these lists, but as similar DWP benefits are listed, it might be expected that they will be included in the future.

There is an Administrative Commission for the co-ordination of social security systems (‘the Administrative Commission’), This is responsible for questions of interpretation arising from the regulations on social security co-ordination and for promoting and developing collaboration between EU countries. Following Brexit, the UK will now only have observer status on this commission, even though decisions concerning the EU’s Social Security Coordination policies may have a direct impact on British citizens in the EEA and EEA citizens in the UK (who are in scope of the WA). The Scottish Government will feed in to the UK position, but interpretative decisions are made by the Administrative Commission, and not by the UK or Scottish governments.

Under the TCA, a new Specialised Committee on Social Security Coordination (and an accompanying working group) is being established. This will monitor implementation of the Social Security Protocol and seek to resolve any disputes. The UK will be an active participant although details of how the Committee will function are still being finalised

In some cases it’s a relatively ‘safe bet’ how a benefit will be categorised – especially where it’s a ‘Scottish version’ of a DWP benefit. Some updates on categories were provided at the seminar:

Carer’s Allowance Supplement and Young Carer Grant are social security (specifically, cash sickness benefits)
Job Start Payment is social assistance
Scottish Child Payment, Best Start Foods, Best Start Grant and Funeral Support Payment are all SNCBs.

Bilateral agreements

While the TCA and WA apply to all EU member states, there may be scope for bilateral agreements between individual countries. Dr Roberts discussed a very recent Council Decision (EU) 2021/689 of 29 April 2021 which states:

The Member States are empowered to negotiate, sign and conclude bilateral agreements with the United Kingdom […] in the area of social security coordination as regards subject matters not covered by the Protocol on Social Security Coordination.
Council Decision (EU) 2021/689 of 29 April 2021

Could this be used to fill the ‘gaps’ in the TCA? It remains to be seen whether this will result in additional bilateral arrangements being developed.

Dr Roberts concluded with three considerations for policy makers:

The limited number of social security benefits coordinated by the TCA may restrict people’s life choices, in particular those with disabilities.
Scotland’s policy makers and legislators need to consider the potential impact of gaps in social security entitlements for people moving to Scotland in the future when considering residence criteria attached to Scotland’s devolved benefits.
Is there scope in Art 7 of Council Decision (EU) 2021/689 of 29 April 2021 for new bilateral agreements on matters not covered by the Protocol on Social Security Coordination, and if so, how can Scotland input to UK decisions?

What can the Scottish Government do?

Both the WA and TCA are international law. As was noted in the seminar, the Scottish Government can’t negotiate on its own with the EU, and Scottish legislation must conform to international law. So although the Scottish Government’s view is that it would be better if we hadn’t left the EU, and had therefore kept the previous coordination rights, it must operate within international law as it stands.

However, is the TCA a ‘floor’ or a ‘ceiling’? Could ways be found to make Scottish benefits more generous in some areas?

One example discussed was the ‘past presence’ rules. These require a person to be ‘present’ in Great Britain for a certain length of time before they can claim disability benefits (for Child Disability Payment it’s the common travel area (UK, Jersey, Guernsey, Isle of Man, Ireland)). Do we have to have these rules? They’ve already been made more generous for children as a result of a human rights challenge. Does this suggest ways of changing residency criteria for Scottish benefits that results in a more generous outcome without falling foul of international law?

An interesting angle raised was whether we should we be trying to replicate the ‘pre-Brexit situation’ or not. Social security co-ordination is based on treating EEA and non-EEA nationals differently. Post-Brexit, is that still justifiable?

How many people?

As was pointed out at the seminar, it’s really surprisingly difficult to know how many people these rules apply to. Its likely to be a small number, and over time, likely to get smaller as fewer people remain protected by the WA.

However, that just begs another question: do new restrictions matter any less because they affect relatively few people, or, on the other hand, as a small cohort means less financial impact – can we therefore afford to be more generous?

Complex and getting more complex

This was a complex area before Brexit and is an even more complex area now.

Its complex for governments negotiating the rules, for Parliaments legislating for the rules, for decision makers applying the rules. But, most importantly, it is difficult to understand how any claimant or CAB adviser would have a chance of figuring out what their rights are – if they are even aware that they have any.

The point was made at the seminar that clear, up-to-date, comprehensive guidance needs to be publicly available. Not an easy task, but one that’s essential if anyone is to stand a chance of working their way through their entitlements.

The situation is not yet settled. Both the post-Brexit co-ordination rules and Scottish social security are only just starting to get going. How they develop and interact may not become clear for some years.

Camilla Kidner, Senior Researcher, Social Security