Commentary on Provisions Part 4 – Assistance Given in Error Section 14: Assistance given in error: deductions from other assistance
75.For assistance which is paid on an ongoing basis rather than as a one-off payment, the relevant schedules to the 2018 Act (schedules 2, 5, 7 and 9) allow that assistance to be paid by way of deduction from any liability the individual has to the Scottish Ministers under section 63. Despite the general restriction on assistance being given in a form other than money without the individual’s agreement, assistance can be paid by way of deduction at a reasonable level from section 63 liability if the individual has unreasonably refused to agree to that. Regard must be had to the individual’s financial circumstances.
76.Because under the 2018 Act this was restricted to liability under section 63, it did not extend to liability for overpayments which arises as a result of regulations made under section 79, such as the Scottish Child Payment Regulations 2020. This means that overpayments of assistance paid under section 79 regulations could not be repaid by deduction from assistance given under Part 2 Chapter 2 of the 2018 Act.
77.Section 14 therefore modifies schedule 2 (carer’s assistance regulations), schedule 5 (disability assistance regulations), schedule 7 (employment-injury assistance regulations) and schedule 9 (housing assistance regulations) to add reference to provision corresponding to section 63 made by regulations under section 79. That means that where regulations under section 79 provide for recovery of overpayments, recovery may be made by deduction from those forms of assistance, on the same basis as where the liability arises under section 63. Section 1 of the Act contains equivalent provision for schedule 6A on childhood assistance.