Commentary on provisions of Act Section 22: Disability, industrial injuries and carer's benefits
This section amends Section F1 (social security schemes) in Part 2 of Schedule 5 to the Scotland Act 1998 to give the Scottish Parliament legislative competence in relation to disability, industrial injuries and carer’s benefits, which are currently reserved to Westminster. The Scottish Parliament will have the power to create additional benefits, replace existing benefits with new benefits or other payments and to determine the structure and value of such provision.
	Subsection (2) amends the current social security scheme reservation by introducing two new exceptions (Exception 1 and Exception 2) for disability benefits, severe disablement benefit payable to a relevant person, certain industrial injuries benefits, and carer’s benefits, other than benefits which are, or form an element of, an excluded benefit. The effect of Exceptions 1 and 2 is to bring the benefits which they describe within the legislative competence of the Scottish Parliament.
	Subsection (4) defines various terms:
"Disability benefit" means a benefit which is normally payable in respect of a significant adverse effect which impairment to a person's physical or mental condition has on their ability to carry out day-to-day activities (examples of such activities include looking after yourself, moving around, or communicating) or a significant need arising from impairment to a person's physical or mental condition (examples of such needs include a need for attention or supervision to avoid substantial danger to anyone). The adverse effect or need must not be short-term, because disability benefits are not intended to cover, for example, temporary effects arising from illness. The phrase "normally payable" is designed to provide sufficient flexibility to enable provision for exceptional cases - for example it would enable provision to be made to prevent the payment of benefit in situations where a person is temporarily accommodated at public or local expense in a care home or is receiving free in-patient treatment from the NHS or to relax conditions for the terminally ill. The term "significant adverse effect" is designed to be a very broad definition although it is not completely limitless and it would not include something that is minor, trivial or negligible. This definition of "disability benefit" covers the following benefits currently paid by the UK Government: Attendance Allowance, Disability Living Allowance and Personal Independence Payment. The definition is based on the common feature of these benefits that, with the exception of those people who are terminally ill, eligibility is usually based on the effects on the individual, or the needs of the individual, rather than the nature of their condition itself;
"Severe disablement benefit" means a benefit which is normally payable in respect of a person's being incapable of work for a period of at least 28 weeks beginning no later than their 20th birthday or incapable of work and disabled for a period of at least 28 weeks. This definition covers Severe Disablement Allowance which is currently paid by the UK Government. Severe Disablement Allowance was payable to people who could not meet the National Insurance conditions for Incapacity Benefit. It was closed to new claims in 2001. Severe Disablement Allowance (and Incapacity Benefit) claimants below state pension age are currently being assessed for eligibility for Employment and Support Allowance which was introduced in 2008 and which will remain reserved to the UK Government. For this reason the section only applies to Severe Disablement Benefit insofar as it is payable in respect of a relevant person. Subsection (4) defines a "relevant person" as someone who is entitled to severe disablement allowance at the point the section is commenced as respects severe disablement benefit;
"Industrial injuries benefit" means a benefit which is paid to a person who is or was in relevant employment where that person has suffered a personal injury caused by an accident arising out of and in the course of their employment, or where a person has a disease or personal injury due to the nature of their employment. It also covers trainees on approved relevant employment training schemes. "Relevant employment" means employed earner's employment and includes employment which would have been employed earner's employment but for the fact that a person's employment contract was void or unlawful as a result of a failure to comply with employment legislation. "Employed earner's employment" has the same meaning as set out in the Social Security Contributions and Benefits Act 1992 as at 28 May 2015, the date the Scotland Bill was introduced into Parliament. These benefits recognise the loss of earning potential and additional care needs of the claimant and are paid only for diseases and injuries that are prescribed in legislation. This definition of "industrial injuries benefit" covers the following benefits currently paid by the UK Government: Industrial Injuries Disablement Benefit; Constant Attendance Allowance; Exceptionally Severe Disablement Allowance; Reduced Earnings Allowance; Retirement Allowance; Unemployability Supplement; Industrial Death Benefit; Industrial Injuries Disablement Gratuity and Hospital Treatment Allowance; and
"Carer's benefit" means a benefit which is normally payable in respect of the provision of regular and substantial care to someone normally receiving a disability benefit as defined above. This definition covers Carer's Allowance currently paid by the UK Government.
	The definition of "excluded benefit" ensures that those benefits which are reliant on a test of an individual’s means (income or capital) or which are payable out of the National Insurance Fund , and which may be payable, or provide premiums or additional amounts, to people with health conditions, disabilities or caring responsibilities, remain reserved. Examples of such benefits include contributory and income-related Employment and Support Allowance, contributory and income-related Jobseeker’s Allowance, Pension Credit and Universal Credit.
	The definition of "excluded benefit" also ensures that lump sum payment schemes for people with the diseases specified in the definition remain reserved.
	The definition of "employment" uses a broad, everyday understanding of what constitutes employment including any trade, business, profession, office or vocation and is relevant to the definition of "industrial injuries benefit".
	This section does not affect the Vaccine Damage Payments Scheme, which remains reserved in section F1 in Part 2 of Schedule 5 to the Scotland Act 1998.