1. Background

Following the independence referendum of 2014, the ‘Smith Commission’ was established, tasked with producing an agreement for further devolution to Scotland. Amongst those points agreed by it was that the Scottish Parliament would have the power both to create new benefits in areas of devolved responsibility and to ‘top up’ benefits which remained reserved to Westminster.Footnote ² In the resulting Scotland Act 2016, a range of methods were used to define the boundaries of the Scottish Parliament’s new competences. Some benefits were devolved by description of their subject matter;Footnote ³ some by reference to the subject matter of a statutory provision;Footnote ⁴ some by reference to their function.Footnote ⁵ Alongside those devolved benefits were introduced exceptions which permitted the ‘topping up’ of benefits which would remain reserved to Westminster. One such exception was general, encompassing the provision of financial assistance to a person who is entitled to a reserved benefit and ‘appears to require financial assistance, in addition to any amount the individual receives by way of reserved benefit, for the purpose, or one of the purposes, for which the benefit is being provided’.Footnote ⁶

A rule of this sort – not found in the clauses originally formulated by the UK Government in order to implement the Smith Commission reportFootnote ⁷ – had been suggested by a 2014 report of the Institute of Public Policy Research, which recommended that devolved governments be granted a general power to supplement UK benefits ‘so that they can use cash payments as well as other policy levers to deliver social policy’.Footnote ⁸ This would mean that ‘the level of benefits set by the UK government would serve as a floor, but not a ceiling, for devolved welfare payments’.Footnote ⁹ Because the UK government’s tax base would ‘serve to cover the financial heavy lifting of providing the bulk of welfare benefits, in a way that remained common to all parts of the United Kingdom’ this model would, it was argued, be ‘compatible with the social union – since all UK citizens would continue to be entitled to a set of defined benefits that comprise social citizenship – and the principles of decentralisation, which underline the case for variation over and above an agreed threshold’.Footnote ¹⁰ Though certain executive powers have always been shared between the UK and Scottish Governments,Footnote ¹¹ the changes made by the 2016 Act – not only in the field of welfare but also in others – substantially increased the number of areas of shared or overlapping legislative competence,Footnote ¹² where it was envisaged that both Parliaments not only could but in practice would contribute to setting rules. The power to top up reserved benefits was the archetype of this ‘shared powers’ approach.

Following the coming into force of the 2016 Act, the framework for devolved social security was put in place by the Social Security (Scotland) Act 2018. Part 2 identified nine ‘types’ of assistance, in relation to which the Scottish Ministers were to make rules about eligibility.Footnote ¹³ The types of assistance provided for include ‘Carer’s assistance’,Footnote ¹⁴ ‘Disability assistance’,Footnote ¹⁵ and ‘Early years assistance’.Footnote ¹⁶ The devolution of a specific power to top up benefits which remained reserved was reflected in section 79 of the 2018 Act, which permitted the making by the Scottish Ministers of regulations regarding financial assistance to persons in receipt of such a benefit who (reflecting the language of the exception recognised by the 2016 Act) appeared to those same Ministers to require financial assistance for the purpose (or one of the purposes) for which that reserved benefit was being provided.Footnote ¹⁷ A number of matters were specified therein as those about which provision could be made under such regulations: determining entitlement to assistance, the amount of any assistance, applications for such assistance, obtaining information, appeals, and ‘assistance given in error’ (a later insertion now permits regulations to make provision regarding offences).Footnote ¹⁸ If the ‘ceiling’ of reserved benefits was to be raised, therefore, it could be done in exercise of this generic power rather than via specific provision in an Act of the Scottish Parliament.

2. Scottish Child Payment

Only one of the benefits currently administered by Social Security Scotland on behalf of the Scottish Government was introduced as a top-up benefit in exercise of the section 79 power: the SCP, the subject of a series of regulations made under that power, starting with the Scottish Child Payment Regulations 2020.Footnote ¹⁹ This approach – rather than primary legislation – was taken, it was later said, because it was ‘considered the fastest and most efficient way to deliver the payment’.Footnote ²⁰ The 2020 Regulations defined eligibility for the SCP by reference not only to residence of the person applying – and the fact that they were responsible for the child in question – but also to the fact that the individual applying had been awarded, for the point in time at which the application was made, one of a number of (means-tested) benefits which remain reserved to Westminster, including Universal Credit.Footnote ²¹ Originally for an application to be made on behalf of a given child, that child had to be under six years of age; that was later increased to 16 years of age.Footnote ²² The original value of the SCP was £10 per week (per child); since April 2025, it is £27.15.Footnote ²³ There is no limit on the number of children in a single household eligible for the SCP, creating an important symbolic and practical contrast with the ‘two-child limit’ which meant that, in the context of Universal Credit families could, in ordinary circumstances, receive support only for their first two children.Footnote ²⁴ (Child Benefit, another reserved benefit, is not so limited, but is paid at a higher (enhanced) rate for the older or oldest child.Footnote ²⁵)

The question of which benefits should be ‘topped up’ in this way had been considered early in the policy process. Topping up Child Benefit had been ruled out immediately, because – Child Benefit not being (in general terms)Footnote ²⁶ means-tested – doing so ‘would not achieve the targeting’ that the Scottish Government desired for the SCP.Footnote ²⁷ Not only would it be the most expensive of the options identified, but topping-up Child Benefit would have resulted in 75% of payments being made ‘to children not in relative poverty’.Footnote ²⁸ Making SCP a standalone means-tested devolved benefit would have added, the same process identified, ‘significant complexity in terms of continuous assessments of incomes’, requiring ‘concurrent development of technology and operation, alongside the already complex introduction of the devolved benefits’.Footnote ²⁹ The decision was therefore taken to top up, in the first place, Universal Credit.Footnote ³⁰ Technical challenges saw it decided to employ an application model rather than one in which SCP was automatically paid to those eligible.Footnote ³¹

3. The new legal basis

The choice of legal basis for the SCP was consequential. Because it was introduced under section 79, SCP was excluded from the duties – under sections 78 and 79 of the 2018 Act – to consider the effects of inflation on the various Part 2 benefits and to uprate specific forms of assistance if they were ‘materially below’ their inflation-adjusted level. And though the Scottish Government initially hoped to introduce equivalent duties via secondary legislation (with a provision to that effect included in draft regulations), it became evident that ‘the ability to make provision for uprating is not in the enabling powers’ under which those regulations were to be made.Footnote ³² The gap was filled instead via the Social Security Administration and Tribunal Membership (Scotland) Act 2020, which amended the 2018 Act to bring section 79 top-up benefits generally within the first obligation, and to apply the latter to the SCP specifically.Footnote ³³ This episode reflects a more general difficulty with the legal basis that had been chosen for the SCP. Though there were advantages – not only in terms of the speed with which the SCP could be introduced,Footnote ³⁴ but also the ‘streamlined application and assessment process for which it allows’Footnote ³⁵ – the shortcomings of employing the section 79 power as the legal basis for the SCP have been widely recognised.Footnote ³⁶

This approach meant, most importantly, that the eligibility criteria for the SCP were outside the control of the Scottish Government, being liable to be changed unilaterally by the Westminster institutions, cutting off the SCP of affected persons without reference to the Scottish Parliament or Government. The converse was also a problem: the Scottish Government could not directly widen the eligibility criteria for the SCP (only, potentially, identify other reserved benefits as giving rise to entitlement to SCP) by regulation. And even where the criteria for the underlying reserved benefits remained stable, an individual’s eligibility for them might vary over time, impacting downstream eligibility for the SCP. One example, relied upon repeatedly in discussions of this question, reflects the fact that eligibility for Universal Credit depends in part on a person’s income, such that ‘a small increase in income can result in a drop in Scottish child payment because universal credit stops, which leaves someone worse off overall’.Footnote ³⁷ Similarly, SCP would be denied to anyone who was prevented from qualifying for Universal Credit upon the birth of a third child because of the two-child limit. Further, the constraint on the top-up powers meant that Housing Benefit had had to be excluded as a qualifying reserved benefit, with implications for the ability of those in supported or temporary accommodation to access SCP.Footnote ³⁸ The result was a broad consensus on the need for change to the legal basis of the Payment.Footnote ³⁹ Though consideration was given to modification of section 32 of the 2018 Act (which provides for ‘early years assistance’), the approach chosen was to create a new regulation-making power along those already found in the 2018 Act, which could be used to make the SCP a stand-alone rather than top-up devolved benefit.

Against this background, the Social Security (Amendment) (Scotland) Act 2025 inserts a new section 32A and associated Schedule into the 2018 Act. Section 32A identifies a new form of assistance to which the duty to give assistance under the 2018 Act applies: ‘childhood assistance’. This is assistance (‘which may or may not take the form of money’) given by the Scottish Ministers in order to ‘help towards meeting some of the costs associated with having a child in the family’.Footnote ⁴⁰ When the provision comes into force, the Scottish Ministers will be required to make regulations which prescribe ‘the eligibility rules that are to be applied to determine whether an individual is entitled to childhood assistance’ and ‘what childhood assistance an individual who is entitled to it is to be given’.Footnote ⁴¹ The Schedule to the Act elaborates that regulations made under the new power must be ‘framed so that a person’s eligibility for assistance depends on that person satisfying’ one of what are described as the ‘primary eligibility criteria’: that the individual is, or has been, pregnant; has a relationship of a specified kind to another individual who is, or has been, pregnant; is to, or has, become responsible for a child; or has a relationship of a specified kind to another individual who is to, or has, become responsible for a child.Footnote ⁴² This new form of assistance replaces the original ‘early years assistance’ which is currently the legislative basis of the ‘Best Start Grant’ and the ‘Best Start Foods’ grant, which provide assistance towards the costs of being pregnant or having a young child, and the relevant regulations will therefore be effectively transferred onto this new legislative basis.

4. Conclusion: the devolution of social security in action

The Social Justice and Social Security Committee, the lead Committee on the Bill that became the 2025 Act, asked, in its Stage 1 Report on the Bill, that the Scottish Government set out ‘its clear priorities for early use of these powers for further development of the Scottish Child Payment’.Footnote ⁴³ It seems, however, that while future development of the payment is foreseen, there is no particular intention to make short-term changes to rules around, for example, eligibility for the SCP. Rather, the key innovation of the new legislation is simply to put in place the conditions for ultimately breaking the link between the SCP and reserved benefits, so as to no longer be at the mercy of decisions made at the centre of the United Kingdom and possibly insufficiently attentive to the specific concerns or needs of the people of Scotland. This decision, like the manner of its implementation, seems eminently sensible. It is worth considering, however, what it tells us about the operation of the contemporary devolution settlement.

The (partial) devolution of welfare following the 2014 referendum was the centrepiece of a move towards what was often hailed as a ‘shared powers’ model of devolution, whereby – to a much greater extent than had previously been the case – both Holyrood and Westminster would enjoy a direct and meaningful control over some particular area of policy. And at the heart of that, in turn, was the specific power to ‘top up’ benefits which remained reserved to Westminster, such that many of the payments made by the UK Government would in future be a ‘floor’ and not a ‘ceiling’ – a power reflected in section 79 of the Social Security (Scotland) Act 2018. Reviewing the initial set of SCP regulations, to be made in exercise of that power, the Scottish Commission on Social Security stated that the Scottish Government’s choice to employ the top-up power – based on the view that ‘the expediency of doing so outweighs the possible disadvantages’ – was one which ‘merit[ed] further assessment and scrutiny as the SCP is rolled out’.Footnote ⁴⁴

The enactment of the 2025 Act offers useful insight into that choice, with the story of the SCP suggesting that if taken too literally the practice of ‘topping up’ reserved benefits will be unworkable. Tying devolved benefits to an entitlement to reserved benefits puts too much at the mercy of decisions made elsewhere. Though section 79 persists, the example of the SCP suggests that future Scottish governments should be slow to rely on it, especially in relation to a benefit as complex in its operation as Universal Credit. Notable in that regard is the Scottish Government’s decision (before the endeavour was abandoned)Footnote ⁴⁵ to seek to mitigate the ‘two-child limit’ within Universal Credit via use of the top-up power, which the Scottish Commission on Social Security again observed was made for reasons of speed but which would have had the effect of restricting the ability of the mitigation to reduce poverty because of the exact same limitations which have bedevilled the SCP.Footnote ⁴⁶