Child Disability Payment decision making guide
Legal authority to act on the child's behalf
What are parental rights and responsibilities?
A person with parental rights and responsibilities has the right to act as the child's legal representative (Children (Scotland) Act 1995, s. 2(1)(d)). This includes managing the child's social security assistance. However, if a person has been given parental rights and responsibilities by a court, they may not always have been granted the right to act as the child's legal representative.
Parental rights and responsibilities are defined as:
- to safeguard and promote the child's health, development and welfare
- to provide the child with direction and guidance, in a manner appropriate to their stage of development
- if the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis
- to act as the child's legal representative
The right to act as a child's legal representative stops when the child reaches age 16 (Children (Scotland) Act 1995, s. 2(7)).
For information on the different ways parents and other people gain legal authority to act on behalf of a child, see Part 2 of the Client Representative Guidelines.
Continuing right to act on child's behalf
If a person has legal authority to act on the child's behalf, a case manager cannot cease to regard that person as the child's representative. The only point at which that person could no longer be regarded as the child's legal representative is if their rights are removed by court order, see the section below ‘Impact of court orders’. It is possible for multiple people to have legal authority to act in respect of a child.
Specific considerations
There are specific considerations if a person with legal authority to act for a child has:
- a DWP appointee
- a Social Security Scotland appointee
- a Guardian or Intervener
- been made subject to a power of attorney
Where two or more people have legal authority to act on behalf of a child
Where two people have legal authority to act on behalf of a child, they can both exercise their rights without the consent of the other person in most circumstances.
A case manager may discuss a child's CDP award with anyone who has legal authority to act on behalf of the child.
The case manager will still need to identify the most appropriate person who can act on the child's behalf for the purposes of CDP. For guidance, see ‘Resolving disputes about who should act on behalf of a child’.
How to check legal authority to act on behalf of a child
For information on how to check legal authority to act on behalf of the child, see ‘Checking legal authority to act on behalf of a Child’.
Impact of court orders
A court can remove legal rights, including the legal authority to act on behalf of a child. A person who has had the legal authority to act on behalf of a child removed may still have an interest in the child's welfare and financial circumstances (The Children's Hearings (Scotland) Act 2011 (Review of Contact Directions and definition of Relevant Person) Order 2013, Art. 3).
Someone who has had parental rights and responsibilities removed by a court order will no longer have legal authority to act on the child's behalf. If a child is adopted, parental rights and responsibilities will be removed from the child's birth parents. Parental rights and responsibilities will be granted to the adoptive parent(s).
If a person with legal authority to act on behalf of a child has a DWP appointee
This section applies if the adult who acts on the child's behalf meets all three of the following conditions:
- has legal authority to act on behalf of the child
- has an appointee to manage their own DWP benefits
- does not have a Social Security Scotland appointee for their own benefits
Case managers should confirm whether the person is capable of acting on the child's behalf. This could involve:
- reviewing information already held by Social Security Scotland
- speaking with the person, remembering that they may lack capacity and an understanding of their condition
- speaking with the person's DWP appointee
The case manager should make a referral to Local Delivery to check if the person has capacity to act on behalf of the child.
Where the case manager concludes that the person does have capacity, then they may act on behalf of the child.
If the person does not have capacity to act on behalf of the child, case managers should consider whether there is someone more suitable to act on the child's behalf.
This could include appointing the person's DWP appointee to act on behalf of the child.
If a person with legal authority to act on behalf of a child has a Social Security Scotland appointee
This section applies if the adult who acts on the child's behalf both:
- has legal authority to act on the child's behalf
- has an appointee to manage their own Social Security Scotland benefits.
The case manager should contact the person with legal authority to act on the child's behalf and their appointee to check:
- whether the person with legal authority to act on behalf of the child submitted the application on the child's behalf independently or with support from their appointee
- whether the person with legal authority still requires an appointee.
The person with legal authority to act on behalf of a child would like their appointee to act on behalf of the child
Where the person with legal authority to act on behalf of the child wants their appointee to act on behalf of the child, the case manager should follow the guidance under ‘Overview of finding someone with parental rights and responsibilities’ to begin the process of considering an appointment for the child.
The person with legal authority to act on behalf of a child would like to manage the child's CDP
Where the person with legal authority to act on behalf of the child wants to manage the child's CDP, the case manager should make a referral to Local Delivery. The referral should be arranged to check the person's capacity to manage both:
- their own entitlement to assistance
- the child's entitlement to assistance
Doubts about the appointment
Case managers should take urgent action to review the appointment if they believe the person with legal authority to act on behalf of the child has capacity.
If a person with legal authority to act on behalf of a child has a Guardian or Intervener
This section applies if the adult who acts on the child's behalf both:
- has legal authority to act on behalf of the child
- has a Guardian under a Guardianship Order (Adults with Incapacity (Scotland) Act 2000, s. 57 et seq.) or an Intervener (Adults with Incapacity (Scotland) Act 2000, s. 53)
Note, this is different to a Guardian appointed for a child in the event of a parental death.
In these circumstances, the case manager may assume the person is not regarded as legally or practicably able to act on the child's behalf.
Case managers should contact the person's Guardian to ask if the Guardian or someone else would like to be appointed on behalf of the child. See the guidance on how to verify a Guardianship Order.
If a person with legal authority to act on behalf of a child is subject to a power of attorney
This section applies if the adult who acts on the child's behalf both:
- has legal authority to act on behalf of the child
- is subject to a power of attorney
In these circumstances, the person may not be practicably able to act on the child's behalf.
Case managers should request a visit by Local Delivery to establish whether the person has capacity act on the child's behalf.
If the person lacks capacity to act on behalf of the child, the case manager should identify another person to act on behalf of the child.
Where it is concluded that the person does have capacity, they may be able to act on behalf of the child.