Case managers should verify that a person does hold legal authority to act on behalf of the child. This is known as the ‘child responsibility check’.

The case manager should satisfy themselves on the balance of probabilities that a person has legal authority to act on behalf of the child.

This means that it is more likely than not that the person does have legal authority to act on the child's behalf. It does not mean that the person needs to prove this beyond a reasonable doubt.

The case manager can do this by:

• considering information already held about the person and their relationship with the child
• asking the person questions about their relationship with the child
• asking the person to supply supporting information to confirm their relationship with the child

If the case manager cannot verify legal authority to act on behalf of the child

Case managers may be unable to verify that the person is responsible for the child. The case manager

should find out if there is someone else who meets all of the following:

• has authority to act on behalf of the child
• lives with, and has care of, the child
• is willing, and practicably able to act on behalf of the child

If there is someone who meets the above criteria, the case manager should consider whether they are more suitable to act on the child's behalf.

If the case manager cannot identify anyone else with a legal authority to act on behalf of the child, they should consider appointing the person.

Considering information already held about the person and their relationship with the child

If the person has stated that they do not have legal authority to act on behalf of the child, the case manager should:

• establish who does have parental rights and responsibilities to act on the child's behalf
• if no one has legal authority to act on the child's behalf, consider appointing that person

If the person has stated that they do have legal authority to act on behalf of the child, the case manager should consider information already held by Social Security Scotland about them. This information could be one or more of the following:

• supporting information supplied as part of the CDP application, such as a birth certificate or a court order
• identifying other benefits that the person receives in relation to the child
• whether anyone else receives a benefit for looking after the child
• whether the adult lives with the child or at a separate address

If the case manager is satisfied that there is no information that suggests that person does not have legal authority to act on behalf of the child, the person, on balance of probabilities, may be able to act on behalf of the child with regard to a CDP award.

If it is unclear whether the person does have legal authority to act on behalf of the child, case managers should consider asking the person further questions.

Asking further questions

Case managers should be prepared to ask further questions to clarify a person's relationship with the child.

The questions should relate only to establishing whether that person currently has legal authority to act on the child's behalf. This could include asking questions about the following:

• the nature of the person's relationship with the child
• whether the child resides with that person or someone else
• whether anyone else has parental rights and responsibilities for the child

If the person has not answered the question on the application form about their relationship with the child, this should be clarified with them.

These questions should be handled fairly, sensitively and in line with the person's own communication needs.

If the case manager is satisfied that there is no information that suggests that person does not have legal authority to act on behalf of the child, the person will be able to continue to act on behalf of the child.

If it is still unclear whether the person does have legal authority to act on behalf of the child, case managers should consider asking the person to provide supporting information about their relationship with the child.

If the case manager can be satisfied that, on balance of probabilities, considering the information available, the person has legal authority to act on behalf of the child, the case manager may make a decision that the person has the right to act as the child's representative.

Asking for supporting information

The case manager may ask the applicant for supporting information to confirm the nature of their relationship with the child. The case manager must make sure that the applicant has not already provided this kind of information as part of the CDP application.

If the case manager is not satisfied that the applicant has legal authority to act on behalf of the child, then the piece of supporting information asked for will depend on the applicant's relationship to the child. It must detail that the individual has the right to act as the child's legal representative. It may help to make it clear to the applicant that this is the information needed to act on behalf of the child.

It is important that any piece of supporting information in this scenario confirms that the individual has legal authority to act on behalf of the child for Social Security Scotland to act on it.

Examples of information or combined documents that could confirm the legal authority to act on behalf of the child could be:

• a birth certificate
• legal documentation detailing a second parent
• a court order
• a parental rights and responsibilities agreement
• a will and/or codicil and the death certificate of a parent
• birth certificate and legal documentation referring to Section 3(5) of the Children (Scotland) Act 1995 Act.

This list is not exhaustive.

If an individual does not have supporting information that shows they have legal authority to act on behalf of the child, a case manager may make a decision that the individual, on the balance of probabilities, has the authority to act as the child's legal representative.

Example: Client who, on the balance of probabilities, has legal authority

A client has supplied a court order which is a poor quality photocopy and not clear enough to make out every word. The case manager has confirmed they have responsibility for the child with a child responsibility check, and a Housing Officer has provided further confirmation that they are the child's aunt and main carer since the child's parents died. The aunt confirms by telephone that they have the right to act as the child's legal representative. The case manager makes the decision that, on the balance of probabilities, the aunt has legal authority to act on behalf of the child.

Example: Court Order supplied showing parental rights and responsibilities have been granted

The uncle of a child supplies a court order showing that they have been granted parental rights and responsibilities for the child. The court order does not state which parental rights and responsibilities have been granted. The case manager asks the uncle to confirm that they have been granted all parental rights and responsibilities including the right to act as the child's legal representative. The uncle confirms that was correct. The case manager makes the decision that, on the balance of probabilities, the uncle has legal authority to act on behalf of the child.

If the case manager has any uncertainty over whether a piece of supporting information confirms legal authority to act on behalf of the child, the case manager should request legal advice via a case discussion.

The case manager should be prepared to accept any official documents from a public authority. Public authorities include:

• local authorities
• NHS boards
• courts or tribunals (including the Children's Panel)
• DWP

The official document should show that the applicant is the child's mother, father, parent or guardian or otherwise granted the right to act as the child's legal representative. It must not suggest that parental rights or responsibilities have been removed by a court.

The child responsibility check is complete if the case manager is satisfied on the balance of probabilities that the applicant has parental rights and responsibilities for the child and is practicably able to act for the child.