Child Disability Payment decision making guide
Genuine and Sufficient Link to Scotland
There is no statutory definition of a genuine and sufficient link to Scotland. There are common factors to take into account in assessing an individual’s link to a place. However, these are neither prescriptive nor exhaustive.
The requirement for a genuine and sufficient link to Scotland applies to applications made from abroad, provided that the individual making that application is within scope of the coordination rules.
The factors to consider include whether the individual:
- has spent a significant part of their life
- works, or has previously and paid social security or tax contributions • has any bank accounts or other financial products
- has the right to any rented or owned property
- has any family members living in the place in question
- has frequent contact with those family members) in the place in question
The purpose of testing an individual’s link to Scotland is to establish if Social Security Scotland should deal with their application or case where the UK is the competent state for paying that person’s benefits. Cases where an individual cannot demonstrate this genuine and sufficient link their claim should be denied.
The aim is to test for both a:
- factual and hence ‘genuine’
- sufficient, which is more than incidental or minor
- connection to Scotland The decision-maker must take into account all relevant evidence that it is established. Such evidence may include:
- the relationship between the applicant and the host Member State • family circumstances
- other personal circumstances (Kavanagh & Mohamed v SSWP [2019] 1 WLR 3655 at para 67)
Relevant to the question are both objective evidence and the subjective intentions and motivations of the individual. The Court of Appeal has previously said: ‘…in assessing whether such a genuine and sufficient link is established, objective evidence of the link is plainly critical but evidence of the motives, intentions and expectations of the applicant are not to be ignored if they are relevant to proof of the link and are convincing’ (Kavanagh & Mohamed v SSWP [2019] 1 WLR 3655 at para 67).
It is anticipated that some cases will require closer scrutiny than others. For example, an individual who spent their entire working life in Scotland before retiring to Spain or someone who is currently working in Scotland are good examples of a clear genuine and sufficient link. More detailed enquiries will be necessary in cases where the facts are less determinative. This is when the subjective evidence described by the Court of Appeal becomes more relevant.
Barney (7) lives in Spain with his parents, where his father is posted for work by a large UK company. Until the family moved to Spain, Barney went to school in Dundee. Most of the family’s relatives live in and around Dundee. Before moving, Barney’s family worked and owned property in Dundee. Barney’s parents still own the family home which is being rented out. Barney visits grandparents in Dundee twice each year; once in summer and again during the Christmas holidays. Barney has a Genuine and Sufficient Link to Scotland.
Armando (4) lives in Italy with his parents, who are both UK nationals. Before moving to Italy, Armando had spent the majority of his life living in Bristol where his father worked and the family owned property, except for a year where the family relocated to Edinburgh for his father’s job. All of Armando’s family live in the south of England. He hasn’t returned to Scotland since he moved back to Bristol before moving to Italy. Armando does not have a Genuine and Sufficient Link to Scotland.