Social security system - enhanced administration and compensation recovery: consultation analysis

3 Improving client experience

3.1 Introduction

Client experience is central to the Scottish Government's approach to social security. As part of the work to develop and implement Scottish Government social security powers, extensive research was undertaken with the Social Security Experience Panels. These Panels comprise over 2,000 people with lived experience of the social security system and with additional 'Seldom Heard Voices' groups.

This chapter relates to Scottish Government proposals regarding improving client experience, and the Scottish Social Security Principle as set out in the 2018 Act: "opportunities are to be sought to continuously improve the Scottish social security system in ways which put the needs of those who require assistance first, and advance equality and non-discrimination"^[11].

3.2 Scottish Child Payment

Scottish Child Payment helps to support low-income families in Scotland. It is payable to families in receipt of certain UK Government benefits, such as Universal Credit. There is no limit to the number of children per family who can receive the payment and over 385,000 children are forecast to be eligible in 2022/23.

Scottish Child Payment was introduced in February 2021 as a payment of £10 per week for children under the age of six across Scotland. In November 2022 the eligibility criteria changed to include children between the ages of six and 16 and the payment increased to £25 per week. The payment is delivered under Section 79 of the 2018 Act, which allows the top-up of a UK qualifying reserved benefit.

The Scottish Government thinks it would be desirable to have additional flexibility over the rules governing the Scottish Child Payment to be able to make changes in future. For example, in response to feedback from people with lived experience and stakeholders, or to react to potential changes made by the UK Government to UK reserved benefits.

This could be utilised to future-proof the Scottish Child Payment and could allow for closer alignment between the payment and other forms of assistance delivered by Social Security Scotland, such as the Best Start Grants and Best Start Foods.

The consultation sought views on whether it would be useful to be able to make changes to the current arrangements for Scottish Child Payment.

3.2.1 Question 1: do you agree or disagree that it would be useful to be able to make changes to the Scottish Child Payment that were not limited by the current approach that relies on 'top-up' powers?

Note: the analysis of responses to Question 1, and all closed questions presented in Appendix C, excludes consultation respondents that did not provide a response (meaning blank responses).

Table C.1 and Table C.2 (Appendix C) provide the quantitative response to Question 1. Key points include that:

• almost all consultation respondents who answered Question 1 agreed (93%) with the proposal that it would be useful to be able to make changes to the Scottish Child Payment that were not limited by the current approach that relies on 'top-up' powers
• the remainder of consultation respondents didn't know (7%).

3.2.2 Question 2: please give reasons for your answer.

Almost three-quarters of all consultation respondents (74%) answered Question 2. Qualitative responses to this question highlighted a range of advantages of the proposal, and the feedback is described at Question 3 (Section 3.2.3).

3.2.3 Question 3: please give your views on the advantages that could arise from creating this additional flexibility.

Almost three-quarters of all consultation respondents (74%) answered Question 3 on advantages that could arise from creating this additional flexibility. The main feedback is outlined below.

Theme 1: early success and impact of the Scottish Child Payment

Most consultation respondents (third and public sector organisations) highlighted the early success and impact of the Scottish Child Payment for families across Scotland as a reason why they supported the proposal that it would be useful to be able to make changes that were not limited by the current approach that relies on 'top-up' powers.

These respondents emphasised that the Scottish Child Payment has made a real difference to families and has been a lifeline for many families in Scotland experiencing financial hardship.

Some third sector organisations made the point that the cost-of-living crisis has had, and will continue to have, a disproportionate impact on lower income families and families living in poverty. Additional flexibility for the Scottish Government was therefore welcomed.

Theme 2: limitations of Universal Credit as a qualifying benefit

While most consultation respondents (third and public sector organisations) indicated that they understood the rationale for the current approach that relies on 'top-up' powers, they agreed with the Scottish Government on the need to future-proof and protect the Scottish Child Payment.

Most consultation respondents (third and public sector organisations) raised concerns relating to limitations of 'top-up' powers and Universal Credit which is a UK Government qualifying reserved benefit for receipt of the Scottish Child Payment. The main point raised was that changes made by the UK Government in the future to the eligibility criteria for UK qualifying reserved benefits, such as Universal Credit, could have a knock-on effect on the Scottish Child Payment thereby reducing its take-up and ultimately its impact for families in Scotland.

Some consultation respondents (third and public sector organisations) felt that current arrangements which tie the Scottish Child Payment to receipt of a UK qualifying reserved benefit had several limitations. These limitations include that:

• Universal Credit pays an additional amount for families' first and second child meaning that families with more than two children are not eligible for extra money for any more children unless they meet certain criteria^[12]
• families face a financial cliff-edge if a continuing payment of a UK qualifying reserved benefit was removed or stopped due to a change in their circumstances (for example, fluctuations in monthly earnings and income)
• the UK Government could change or narrow the eligibility criteria for UK qualifying reserved benefits in the future which the Scottish Government would not have any control over
• changes at a UK Government level could reduce the number of families in Scotland eligible for such UK qualifying reserved benefits and therefore for the Scottish Child Payment which is tied to these benefits
• particular groups of people might be disproportionally impacted by the eligibility criteria of UK Government qualifying reserved benefits - for example, there was reference within consultation responses to students, single-parent families, mothers eligible for maternity allowance (who are not entitled to Universal Credit), people eligible for housing benefit, migrants, and visually impaired people.

It was suggested that creating additional flexibility for the Scottish Government could help address these limitations.

The points raised are reflected in the following (selected) respondent quotes.

"Our early warning system has evidence of families losing entitlement of a qualifying benefit for a short period of time. This can be because of a temporary increase in earned income, a change of circumstances or due to the ways that universal credit works that can mean families lose entitlement for one assessment period, even though their income hasn't changed. Because Scottish Child Payment in [sic] only payable to people who receive a qualifying benefit these households lose entitlement to both the qualifying benefit and Scottish Child Payment…The Scottish Government would have the ability to continue to support families, by making payments of Scottish Child Payment, during these periods when families are temporarily no longer entitled to the qualifying benefit."

Child Poverty Action Group in Scotland

"Weekly entitlement to Scottish Child Payment is incompatible with monthly Universal Credit payments; therefore, it is difficult to work out any entitlement in a specific week. This is not an issue for someone who does not have earnings as their Universal Credit payments are likely to be the same every month. However, people with earnings that vary month to month may come in and out of Universal Credit entitlement – and therefore entitlement to Scottish Child Payment."

The Action Group and VOCAL

"It would allow for an expansion of eligibility for those currently excluded due to non-qualification for UK benefits for example parents who don't qualify for Universal Credit due to the two-child rule or those in receipt of Housing Benefit only due to the benefit cap."

One Parent Families Scotland

Theme 3: greater flexibility for the Scottish Government

Many consultation respondents (individual respondents, public and third sector organisations) agreed that the proposal could allow additional flexibility for the Scottish Government over the rules governing the Scottish Child Payment to be able to make changes in future.

Some of these respondents felt that greater flexibility could help the Scottish Government mitigate the risks associated with changes made by the UK Government in the future to UK qualifying reserved benefits, such as Universal Credit. Narrowing of eligibility criteria for Universal Credit was highlighted as an example which could result in fewer families in Scotland continuing to receive this UK Government benefit – and therefore fewer families eligible for the Scottish Government benefit – Scottish Child Payment (for example, if they were not eligible for another UK qualifying reserved benefit).

Further, these respondents suggested that creating greater flexibility would enable the Scottish Government to fill gaps and address any existing unfairness in the current social security system.

Some of the points raised above are reflected in the following (selected) respondent quotes.

"By making the Scottish Child Payment more flexible the Scottish Government would be able to effectively respond to the current cost-of-living crisis, helping those in dire need. When we spoke with women about the rising cost-of-living, many made it clear that they felt families would be significantly impacted and as such a more flexible scheme would enable an immediate response to major changes in an individual's life: for example, changes to employment."

Scottish Women's Convention

"Flexibility in the design and delivery of Scottish Child Payment could enable a closer alignment with other forms of Social Security Scotland assistance, such as Best Start Grant, potentially streamlining access to benefits, permitting a more seamless system of support, and easing evidence provision processes. Such flexibility could enable Social Security Scotland to, for example, target support to those most in need."

Citizens Advice Scotland

Theme 4: a more agile and responsive Scottish social security system

Some respondents (mostly third sector organisations) reported that an advantage of creating additional flexibility over the rules for the Scottish Child Payment would be a more agile and responsive Scottish social security system.

It was suggested that this flexibility could allow the Scottish social security system to:

• respond quickly to current and future external factors and events – such as the cost-of-living crisis, which respondents said was having a real impact on families experiencing or at risk of poverty, or a future pandemic
• increase efficiency and effectiveness - quicker decision-making; faster payments; and a system that was more responsive to changes in a family's circumstances
• make improvements in response to feedback received from people with lived experience of the system and from key stakeholders
• simplify and streamline processes and thereby reduce bureaucracy.

Some of the points raised above are reflected in the following (selected) respondent quotes.

"An advantage may be the ability to fast-track benefit payments, so that whilst a case is being considered by Department for Work and Pensions (DWP), there is flexibility to make payments where there is a valid application particularly where increased hardship is being experienced. This may be helped by using National Insurance records/contributions to determine eligibility, or other income letters such as bank statements, payslips."

Royal National Institute for the Blind Scotland (RNIB Scotland)

"The suggestion of aligning the Scottish Child Payment with the Best Start Grants will reduce bureaucracy within the system and make application and award of the Scottish Child Payment more streamlined which should ultimately improve the user experience and enable quicker payments to families."

The Scottish Association of Social Work (SASW)

Theme 5: alignment with other forms of Social Security Scotland assistance

Some public sector organisations agreed that the proposal would help to align the Scottish Child Payment with other forms of Social Security Scotland assistance. Advantages of closer alignment were reported as reduced bureaucracy, streamlined application processes, making it easier for people to apply for benefits, and quicker payments to families.

Some of the points raised above are reflected in the following (selected) respondent quotes.

"The example given regarding the alignment to other forms of financial support [such as] the "Best Start Grants" demonstrates a sensible approach to streamlining the social security system to ensure quicker and easier access to financial support for those that require it."

Social Work Scotland

"Making Scottish Child Payment a stand-alone benefit would make it easier to align entitlement to the other five family payments and therefore increase the possibility of fully automating payments without application. This could avoid people missing out on this essential financial support because of difficulty applying."

Child Poverty Action Group in Scotland

3.2.4 Question 4: please give your views on the disadvantages that could arise from creating this additional flexibility.

Around two-thirds of all consultation respondents (68%) answered Question 4 and provided views on the disadvantages that could arise from creating this additional flexibility.

Note: much of the feedback provided by these consultation respondents was framed in the context of overall support for the further development and roll out of the Scottish Child Payment.

Theme 1: additional resources might be required

Some consultation respondents (individual respondents, public and third sector organisations) felt that if there was additional flexibility to make changes to the Scottish Child Payment in the future, then additional resources (such as finance and staffing resource) could be required to support implementation. These respondents highlighted that delivering Scottish Child Payment would likely be more expensive if:

• eligibility criteria for Scottish Child Payment was extended
• means testing or the introduction of a bespoke application and assessment process was required because Universal Credit was no longer a UK qualifying reserved benefit.

A few respondents (one third sector organisation and individual respondents) acknowledged the pressure on public finances and felt that access to more funding to create additional flexibility would be challenging in the current economic climate. Related points included concerns that:

• additional flexibility might reduce the level of support that could be made available through the Scottish Child Payment by spreading existing resources more thinly
• funding might need to be taken from other government budgets
• this situation could lessen the impact of the Scottish Child Payment for families and its wider contribution towards child poverty targets.

Some of the points raised are reflected in the following (selected) respondent quote.

"The additional flexibility arising from grounding Scottish Child Payment in primary legislation is likely to require additional administration, resulting from the need to determine eligibility for the payment by itself, and potentially from broadened eligibility criteria. We do not consider this to be a pressing disadvantage, and believe that the focus should be on outcomes, but acknowledge the likely requirement for additional staffing resource for Social Security Scotland."

Health and Social Care Alliance Scotland (The ALLIANCE)

Theme 2: more complex application and assessment processes

Some respondents (mostly third sector and a few public sector organisations) suggested that a further benefit from having Universal Credit as a UK qualifying reserved benefit for receipt of the Scottish Child Payment was that the application and assessment process was straightforward.

These respondents felt that creating additional flexibility could add complexity to the process in a potentially problematic way for Social Security Scotland, particularly in the short-term. There was the suggestion that introducing means testing or a new application and assessment process could require technical changes including the alignment of IT systems. Some of these respondents also reported that greater complexity of the application process could make it more confusing for applicants to navigate and more difficult for families to access the Scottish Child Payment. Their responses highlighted that there could be a disproportionate impact on particular groups of people such as disabled people and people with mental health conditions.

Other concerns, raised to a lesser extent by a few public sector organisations, included that a more complex application process could lead to inconsistent implementation. They suggested that this could be addressed through additional training for Social Security Scotland staff and highlighted that informed decision-making relied on access to up-to-date and robust information.

Some of the points raised above are reflected in the following (selected) respondent quotes.

"Any change to Scottish Child Payment may create confusion around eligibility criteria which could negatively impact on take up of the benefit. In addition, the introduction of Scottish Child Payment on a fresh legislative basis could place additional administrative pressure and strain on Social Security Scotland. Adequate preparation and resourcing will be required prior to any changes being introduced."

Citizens Advice Scotland

"Extending eligibility beyond qualifying UK benefits may require the introduction of means testing, which have potential to be complex and distressing for claimants to navigate. If eligibility routes are increased – something Scottish Association for Mental Health (SAMH) would welcome – application and assessment processes must be co-produced with people with lived experience, including people living with mental health problems to ensure the application process is as straightforward as possible."

Scottish Association for Mental Health (SAMH)

Theme 3: additional flexibility could result in restricting eligibility criteria

While most consultation respondents (individual respondents, public and third sector organisations) assumed that the Scottish Government would use additional flexibility to widen eligibility criteria beyond UK Government qualifying reserved benefits, a few third sector organisations reported that the Scottish Government administration could use the additional flexibility over the rules governing the Scottish Child Payment to narrow eligibility criteria.

Some of the points raised above are reflected in the following (selected) respondent quotes.

"If the flexibility sought was provided to Scottish Ministers…then the powers could actually be used to limit, rather than widen, entitlement to Scottish Child Payment. Instead of "future proofing" this would provide the Scottish Government with powers that could avoid Parliamentary scrutiny and accountability. Therefore, the way in which "flexibility" is achieved is important."

Inclusion Scotland

"It is also possible that a future Scottish Government could use increased flexibility to reduce the number of families entitled to Scottish Child Payment."

Child Poverty Action Group in Scotland

3.3 Re-determinations

Where a person disagrees with a determination made by Social Security Scotland, they can apply for a re-determination. Re-determination processes were co-designed with people in Scotland who have lived experience of comparable DWP systems. During the re-determination process, another officer in Social Security Scotland will consider the case afresh taking account of new evidence provided and will make a new determination. The Scottish Government has deadlines for making the re-determination and if they are not met, a person can appeal directly to the First-tier Tribunal (Social Security Chamber).

Short-term assistance may be payable where a continuing payment is reduced or stopped, and the individual asks for a re-determination or appeal of the decision to reduce or stop the continuing payment.

There is currently no way to withdraw a request for re-determination once it has been made. The Scottish Government believes that its rights-based approach to social security is best served by letting people decide whether or not their re-determination should in fact go ahead. The consultation sought views on whether a person should be able to withdraw their re-determination request.

3.3.1 Question 5: do you agree or disagree that a person should be able to withdraw a re-determination request before Social Security Scotland has made a re-determination decision?

Table C.3 and Table C.4 (Appendix C) provide the quantitative response to Question 5. Key points include that:

• almost all consultation respondents who answered Question 5 agreed (96%) with the proposal that a person should be able to withdraw a re-determination request before Social Security Scotland has made a re-determination decision
• 4% of consultation respondents who answered Question 5 disagreed with the proposal.

3.3.2 Question 6: please give reasons for your answer.

Almost three-quarters of all consultation respondents (74%) answered Question 6, and the main themes are outlined below.

Respondents who agreed with the proposal

Theme 1: individuals should have the right to withdraw a re-determination request

Many consultation respondents (mainly third and public sector organisations) were supportive of the proposal regardless of the reason(s) for withdrawal. They considered it fair and reasonable that a person should be able to withdraw a re-determination request before Social Security Scotland has made a re-determination decision. Some of these respondents felt that the proposal was in keeping with the Social Security Principles around adopting a rights-based and person-centred approach.

The point raised above is reflected in the following (selected) respondent quote.

"Re-determinations are an important part of fairness built into the social security system…It cannot be right that a person-centred human rights-based system that is built on the principles of fairness, dignity and respect do not afford applicants the opportunity to change their mind through the application process at the re-determination stage. That control should always remain with the individual and they should have the right to withdraw their application at any stage in the process."

The Scottish Association of Social Work (SASW)

Theme 2: the proposal has several advantages

Many consultation respondents (individual respondents, public and third sector organisations) suggested that the proposal that a person should be able to withdraw a request for re-determination could create additional flexibility for people. These respondents felt that the proposal would allow people to make decisions in response to changing personal circumstances and make more informed decisions about their re-determination request following independent advice.

Some consultation respondents (individual respondents, public and third sector organisations) highlighted that an additional advantage could be reduced administrative burden. These respondents felt that the proposal could save time and effort for people and Social Security Scotland staff alike.

The points raised above are reflected in the following (selected) respondent quotes.

"Giving people the ability to withdraw their request will allow Social Security Scotland to make a new determination quickly and would mean errors could be sorted at the earliest opportunity. This would reduce the stress and anxiety for claimants in particular those suffering from mental health issues."

One Parent Families Scotland

"It seems logical, and efficient in terms of staff resources, to allow clients to withdraw redetermination requests when they have already achieved the objective for which the redetermination request was originally lodged."

Inclusion Scotland

Theme 3: access to independent advice is vitally important

Some consultation respondents (individual respondents, public and third sector organisations) who agreed with the proposal considered it important that individuals were able to access independent advice easily. Independent advice was said to act as a safeguard and would help to ensure people have considered their options before deciding whether or not their re-determination should go ahead.

The point raised above is reflected in the following (selected) respondent quote.

"Someone might receive independent advice that there is little, or no chance of their request succeeding and based on that information, may wish to withdraw their request. They should be allowed to do so."

Child Poverty Action Group in Scotland

Theme 4: caveats made by those who supported the proposal

Some third and public sector organisations who supported the proposal in principle caveated their response in some way. It was suggested:

• by a few third sector organisations that the re-determination process could be stressful, and that it would be important to ensure people do not feel pressured in any way to withdraw a re-determination request - monitoring and the option of a "cooling off" period were considered important in this regard
• that the advantages and disadvantages of withdrawing a request for re-determination should be clearly communicated to people, particularly where there would be an impact on short-term assistance - signposting people to independent advice was therefore considered important.

Some of the points raised above are reflected in the following (selected) respondent quotes.

"Care must be taken that pressure is not exerted by staff carrying out a re-determination or seeking further evidence to suggest that an individual may want to withdraw a request. The Scottish Government should monitor reasons why people withdraw requests to ensure that it does not become a barrier to justice."

Child Poverty Action Group in Scotland

"We also recognise the risk for individuals who may be experiencing financial abuse who may feel under pressure from their abuser to remove a re-determination request. We would recommend that additional checks and safeguarding are brought in to ensure that, as far as possible, this does not happen".

Christians Against Poverty Scotland

"Applicants who wish to do this should have all of the information needed to make an informed choice and be aware of the consequences of such action, including the loss of short-term assistance that may be in place. Information should be available in a range of formats pertaining to the needs of the individuals and they should have access to independent advocacy and representation should they wish."

The Scottish Association of Social Work (SASW)

Respondent who disagreed with the proposal

One individual respondent disagreed with the proposal that a person should be able to withdraw a re-determination request before Social Security Scotland has made a re-determination decision. Their response was that care should be taken to ensure that re-determinations are withdrawn for the right reason(s) and not because people feel unable to face the process.

3.4 Determinations after an appeal is lodged

Where Social Security Scotland has completed a re-determination and a person still disagrees with its decision, they can appeal. People can also appeal if Social Security Scotland fails to make a re-determination in the time allowed by regulations. Appeals are made to the First-tier Tribunal for Scotland (Social Security Chamber). The Tribunal is administered by the Scottish Courts and Tribunals Service, which is independent of the Scottish Government.

If a person wants to appeal to the First-tier Tribunal (Social Security Chamber) they complete an appeal form and return it to Social Security Scotland, which then forwards it to the Tribunal for consideration. Scottish Ministers cannot currently make a new determination if a person has appealed, even if it is established after an appeal is lodged that a person's award of assistance is wrong. The Scottish Government believes that introducing a mechanism for Social Security Scotland to make a new determination at this stage, and stopping the appeal, could mean that errors could be rectified early.

The consultation asked whether a new determination should only be made where the new determination has the same effect as the Tribunal making the maximum award available to it; whether the new determination should only be made where a person consents to it; and what challenge rights should be available against the new determination.

3.4.1 Question 7: do you agree or disagree that a new determination should only be made if it gives the person everything they could get from the Tribunal?

Table C.5 and Table C.6 (Appendix C) provide the quantitative response to Question 7. There was relatively mixed consultation respondent feedback, including:

• 40% of consultation respondents who answered Question 7 agreed that a new determination should only be made if it gave a person everything they could get from the Tribunal
• 44% of consultation respondents disagreed with the proposal
• 16% of consultation respondents didn't know.

3.4.2 Question 8: please give reasons for your answer.

Almost three-quarters of all consultation respondents (74%) answered Question 8.

Respondents who agreed with the proposal

Theme 1: it would remove the need for people to attend unnecessary Tribunal hearings

A prevalent view among consultation respondents (individual respondents, public and third sector organisations), regardless of their response to Question 7, was that people should not have to attend any unnecessary Tribunal hearings, and this proposal could reduce stress for people.

Some of the points raised above are reflected in the following (selected) respondent quote.

"No change in current process should be to the detriment of the individual. The introduction of this additional route of rectification would reduce the stress experienced by individuals who found themselves enroute to appeal."

The Scottish Association of Social Work (SASW)

Theme 2: it could reduce time and resources spent on appeals

A few consultation respondents (public and third sector organisations and one individual respondent) supported the proposal that a new determination should only be made if it gave a person everything they could get from the Tribunal as it could help reduce the time and resources involved in the challenge process.

These respondents went on to identify a range of benefits that the proposal might have for people and Social Security Scotland including:

• reduced bureaucracy and complexity of the appeals process
• increased transparency of the appeals process
• that errors could be rectified early
• that it would empower people by ensuring they had a right to challenge if they believed that Social Security Scotland had not made the right determination.

Some of the points raised above are reflected in the following (selected) respondent quote.

"In addition to reducing the emotional and health impacts on the individual who would otherwise have to attend a Tribunal hearing, this would also reduce the administrative burden on Social Security Scotland and the Tribunal by relieving them of the need to continue appeals processes that have already identified a satisfactory alternative resolution."

Health and Social Care Alliance Scotland (The ALLIANCE)

Respondents who disagreed with the proposal

Theme 1: the proposal assumes that Social Security Scotland can pre-empt the decision of a Tribunal hearing

Some third sector organisations suggested that the proposal could result in new determinations pre-empting the outcome of Tribunal hearings. These respondents considered this eventuality inappropriate for Social Security Scotland and that it could restrict options for the agency to respond to an appeal. These respondents were also concerned that pre-empting a decision to work out everything a person could get from a Tribunal might not be practical given the complexity and nuance of individual cases.

The points raised above are reflected in the following (selected) respondent quotes.

"For Adult Disability Payment, an award is based on how the disability affects an individual, hence people with the same disability may get different awards, which will be correct for them. As an example, some single below knee amputees may be awarded standard or enhanced mobility and/or an award of daily living. In this instance it would be impossible for Social Security Scotland to know what everything is that the client could get from a Tribunal."

Blesma

"It should not be for Social Security Scotland to pre-empt the decision of the tribunal. Child Poverty Action Group in Scotland believe that as soon as the Scottish Ministers accept that their decision is wrong, they should immediately make a more favourable determination of what they believe to be an individual's correct entitlement. This is in keeping with the principles in s1 of the Act. If an individual wishes to challenge the new determination, they should have the immediate right to make a further appeal. This will enable a partial award of benefit to be in place until the appeal is heard."

Child Poverty Action Group in Scotland (CPAG)

Theme 2: people might want to accept a higher award that is less than the maximum

Some consultation respondents (mostly third sector organisations) who disagreed with this proposal felt that it did not take into consideration people who might wish to consent to the new determination even if it would not give them everything that that they could get from a Tribunal. Examples were provided of cases where it might be more desirable for a person to accept less than the maximum they could get from a Tribunal.

These respondents also stated that the challenge process could be stressful and daunting for people, and that some might rather avoid applying for a re-determination as a result.

A few consultation respondents disagreed with the wording of the proposal – "everything that they can get from a Tribunal" – as they felt it might be too restrictive and lacked clarity. Support was, however, expressed for informed consent and a person-centred approach.

Some of the points raised above are reflected in the following (selected) respondent quote.

"It is unclear what is meant by a determination giving the client 'everything they could get from the Tribunal'. Does this mean the highest rate of benefit payable, or the rate of benefit sought by the client in their appeal? The latter is predicated on a client specifying this, which may not be the case, especially if they do not have a representative. We think that it is in clients' interest for a new determination even if this does not award everything they are seeking from an appeal as it is a quicker resolution, whilst retaining the possibility of a further appeal".

The Action Group and Voice of Carers Across Lothian (VOCAL)

Additional points raised

While outside the scope of the consultation question, a few third sector organisations suggested that the proposal offered the opportunity to reconsider whether claimants should be required to request a re-determination to access the appeals system. It was suggested that the proposal could limit efficiency of the process and be confusing for people.

A third sector organisation also proposed a different approach to appeals more widely. Their suggestion was to amend legislation to allow the Tribunal to only look at certain aspects of a person's case at appeal.

Respondents who answered don't know to the proposal

A few third and public sector organisations were unsure about the proposal that a new determination should only be made if it gave a person everything they could get from the Tribunal. The main point raised was the importance of consent. Additional individual points raised included that there might be practical challenges in implementing and monitoring the proposal, and they felt that the proposal lacked clarity.

Some of the points raised above are reflected in the following (selected) respondent quotes.

"While we accept the rationale of the proposal, we do not believe that someone's appeal should automatically end in the cases outlined in the consultation paper… Ultimately in a rights-based system this should be the decision of the claimant, who in some circumstances may wish to proceed with the appeal against the original determination (or re-determination)."

Scottish Association for Mental Health (SAMH)

"Would the system be like DWP whereby decision makers make telephone offers without explaining to claimants how they arrive at their decision and claimants appeal rights? Further clarity is required on this issue."

North Ayrshire Council

3.4.3 Question 9: do you agree or disagree that a person should be asked for their consent before a new determination is made?

Table C.7 and Table C.8 (Appendix C) provide the quantitative response to Question 9. Key points to note include that:

• 72% of consultation respondents who answered Question 9 agreed that a person should be asked for their consent before a new determination was made
• 16% of consultation respondents disagreed with the proposal
• 12% of consultation respondents didn't know.

3.4.4 Question 10: please give reasons for your answer.

Almost three-quarters of all consultation respondents (74%) answered Question 10.

Respondents who agreed with the proposal

Theme 1: people should be asked for their consent at all stages

Almost all consultation respondents who agreed with the proposal (individual respondents, public and third sector organisations) suggested that people should be asked for consent at all stages of the challenge process. These respondents felt that this would empower and support people. Related points made by these respondents in support of the proposal were that it:

• fits with a person-centred approach
• aligns strongly with the Social Security Principles and Charter
• would reduce stress for people, including those with protected characteristics
• would provide an additional opportunity for people to be signposted to independent advice.

Some of the points raised above are reflected in the following (selected) respondent quotes.

"We believe that it is incredibly important that service-users feel empowered throughout the social security process. Currently, women who claim benefits regularly have feelings of dismay and anxiety, viewing themselves as 'scroungers'. They must consistently justify their claims and do not have control over their own finances: contributing to an overall negative experience. Therefore, asking women for their consent would include them within the decision-making process."

Scottish Women's Convention

"In line with a human rights-based approach and in accordance with commitments in Scotland's Social Security Charter – Our Charter – to ensure clients are full informed we believe asking for consent prior to making a new determination is the best approach. Clients should be informed of the reasons for making a new determination, such as discovery of an official error. In accordance with the charter, clients should be supported to access independent advice and advocacy to ensure they can make an informed decision about providing consent."

Scottish Association for Mental Health (SAMH)

Respondents who disagreed with the proposal

Theme 1: asking for consent would not be necessary at this stage

All four organisation respondents (mostly third sector organisations) who disagreed with the proposal suggested that asking for a person's consent would be unnecessary at this stage. These respondents felt that Social Security Scotland has the right to make a new determination, and that there was not a requirement for consent before making a new determination.

Some of the points raised above are reflected in the following (selected) respondent quote.

"If the individual has the option to withdraw their request for a redetermination or unsuccessful redetermination to proceed to appeal, there would be no need to request consent before making a new determination."

Child Poverty Action Group in Scotland

Theme 2: added pressure being placed on people

A few third and public sector organisations who disagreed with the proposal that a person should be asked for their consent before a new determination was made felt that asking for consent could lead to added pressure being placed on people.

Respondents who answered don't know to the proposal

The main feedback from respondents who answered "don't know" to the proposal about consent were that people might feel pressured, and the proposal lacked clarity.

3.4.5 Question 11: please provide your views on what challenge rights the person should have on the new determination.

Around two-thirds of all consultation respondents (68%) answered Question 11.

Theme 1: mixed feedback on challenge rights

Mixed views were provided on challenge rights.

Most consultation respondents (third and public sector organisations) expressed support for challenge rights, and there were broadly three main views on how those rights should look. The three views were that:

• some respondents thought there should be a consistent approach across the social security system and therefore give people both re-determination and appeal rights on the new determination
• others said that the new decision should only come with appeal rights (meaning that the re-determination step should be skipped)
• while others suggested that instead of stopping the appeal, the appeal should just continue against the new determination.

Some of the points raised above are reflected in the following (selected) respondent quotes.

"The determination should be treated as if it is a new claim or determination. This means the client should have full rights to challenge the new determination, including the right for a re-determination and full appeal rights."

Scottish Association for Mental Health (SAMH)

"Individuals should have the right to challenge the decision by making a further appeal to the tribunal without the need for a further redetermination."

Child Poverty Action Group in Scotland

"Where an appeal has been lodged and Social Security Scotland are able to make a more favourable decision than the decision that was the subject of the appeal, the appellant should be able to choose if they want to continue with the appeal or not. It would be desirable for this can [sic] be done without the need to lodge a fresh appeal as this would introduce a further delay."

Glasgow City Council

A few third sector organisations reported that challenge rights might, however, become less important if consent was required before a new determination was made.

Some of the points raised above are reflected in the following (selected) respondent quotes.

"If consent is included in the process outlined above then challenge rights become less of an issue. However, if there is no consent included then challenge rights are vitally important. We believe that making consent part of the process would mitigate the complications of needing to have a challenge process in place."

Christians Against Poverty Scotland

"We're unsure why challenge rights would be required if the client had already given their consent for a new determination and had also achieved all that could be got at tribunal. However, presuming on checking that the client or their representative found that the new determination did not provide everything that could be got at tribunal then of course the client should then be able to insist that their case be considered by a tribunal. Therefore, when the new determination is issued it should be clearly stated that the client has the option of proceeding to tribunal within a certain period of being notified of the new determination if they are not completely satisfied with it."

Inclusion Scotland

3.5 Appointees

Where a person lacks capacity to manage their own financial affairs, the DWP and Social Security Scotland can each appoint a person or organisation, known as an appointee, to act on that person's behalf. The 2018 Act, and associated statutory guidelines, set out the law and processes that govern when Social Security Scotland can appoint another person to act for someone who lacks capacity to manage their assistance. As the law and processes differ from DWP, currently when a DWP appointee makes a new application for Scottish Government benefits on a person's behalf, they cannot automatically be treated as an appointee in Social Security Scotland's system.

In some circumstances when a person is transferring from a UK disability benefit to a Scottish equivalent form of assistance, a DWP appointee may be temporarily recognised. This is subject to the requirements of the 2018 Act being applied as soon as reasonably practicable after the individual has transferred on to the Scottish benefit. The Scottish Government has identified some other scenarios where it believes it might be better for the client if Scottish Ministers had the flexibility to allow an existing DWP appointee to act for a person for a short period, pending an assessment by Social Security Scotland's Local Delivery team.

There is a small risk that in some cases when the appointment is later reviewed by Social Security Scotland, it may be terminated. This could happen if a person was found to have been able to manage their assistance themselves or because, in a smaller proportion of cases, the appointee was unsuitable. The Scottish Government considers this risk needs to be balanced with the potential benefits of having an application processed or payment made more quickly and easily. The consultation sought views on whether Social Security Scotland should be able to make payments to a DWP appointee for a time-limited period.

3.5.1 Question 12: do you agree or disagree that Social Security Scotland should be able to make payments to a DWP appointee until Social Security Scotland completes its appointee process?

Table C.9 and Table C.10 (Appendix C) provide the quantitative response to Question 12. There was widespread consultation respondent support for the proposal, and points to note include that:

• almost all consultation respondents who answered Question 12 agreed (96%) that Social Security Scotland should be able to make payments to a DWP appointee until Social Security Scotland completes its appointee process
• 4% of consultation respondents disagreed with the proposal.

3.5.2 Question 13: please give reasons for your answer.

Almost three-quarters of all consultation respondents (71%) answered Question 13, and the main points raised are outlined below.

Respondents who agreed with the proposal

Theme 1: allow prompt payments to be made

Most consultation respondents (individual respondents, public and third sector organisations) expressed strong support for the proposal as it would avoid delays to payment pending an assessment by Social Security Scotland's Local Delivery team.

These respondents considered it a sensible approach as it would allow prompt payments to be made by Social Security Scotland to those in need of assistance.

Some organisation respondents (mainly third sector organisations) noted that appointees would have been deemed appropriate following DWP checks therefore not having an arrangement in place to make payment to a DWP appointee and prevent delay would be unfair to people.

Some of the points raised above are reflected in the following (selected) respondent quotes.

"In keeping with principle of 'safe and secure transition' it essential that at migration the payment arrangements, including payment to appointees, are maintained until the new Social Security Appointment system can be completed. To do otherwise could put vulnerable people and their carers in a situation where they are unable to manage or even receive the payments."

Glasgow City Council

"We would agree with this proposal based on a belief that the integrity of the DWP appointeeship process remains in line with human rights and person-centred approaches. We would strongly suggest that how systems operate, and transitions into changed systems of equal merit, should not prohibit people from accessing benefits that will provide vital support in addressing poverty."

Social Work Scotland

Theme 2: benefits outweighed the risks

The general consensus among third and public sector organisations who agreed with the proposal was that benefits outweighed any risks. The main risk identified was the potential for financial abuse whereby a DWP appointee abused their position and power over the person they were acting for.

Some support was expressed by these respondents for the proposal as a DWP appointee would only be allowed to act for an individual for a short period of time. It was suggested that risks could be further mitigated if Social Security Scotland completed their own checks as soon as possible.

Some of the points raised above are reflected in the following (selected) respondent quotes.

"Given the short-term nature of the arrangement, on balance the risk of delays to payments if this measure is not introduced is greater than the risk that an appointee may be subsequently found not to be appropriate for the role."

Citizens Advice Scotland

"We believe on balance that these proposals are proportionate and will avoid the risk of harmful delays in payments of awards, particularly in cases of terminal illness or, for example, for a Funeral Support Payment where timely assessment and payment is essential…the appointee should undergo the full Scottish processes for appointment as soon as is practically possible. In cases where the DWP appointee, after assessment, does not meet the Scottish criteria they should be replaced with a new appointee who meets the Scottish criteria as soon as possible."

Scottish Association for Mental Health (SAMH)

Respondent who disagreed with the proposal

One individual respondent disagreed with the proposal and commented that the appointee process should, with all its checks, be completed prior to any payment to an appointee.

3.6 Challenge rights for overpayment liability

The Scottish Government policy on overpayments is that overpayments that have occurred as a result of error should not be recovered where the individual did not cause or contribute to that error, or if it was the sort of error a person could not reasonably be expected to have noticed. Where an overpayment has occurred, it may be recovered by making deductions from future payments and individuals will be contacted to agree a payment plan.

Currently, where Social Security Scotland comes to the view that an overpayment has occurred, it will make a new determination on a person's entitlement to the benefit in question. Although this new determination will bring re-determination (and appeal) rights if a person disagrees and wants to challenge the decision, those rights of challenge do not currently include the right to challenge the separate decision on whether or not a person is liable to repay the overpayment.

The Scottish Government believes that in a person-centred social security system people should be able to challenge the decision on whether or not they are liable to repay an overpayment. The consultation sought views on the proposal to introduce rights of challenge against Social Security Scotland's decision on overpayment liability.

3.6.1 Question 14: do you agree or disagree that the Scottish Government should introduce rights of challenge against Social Security Scotland's decision that someone was liable to repay an overpayment?

Table C.11 and Table C.12 (Appendix C) provide the quantitative response to Question 14. All respondents who answered this question agreed with the proposal that the Scottish Government should introduce rights of challenge against Social Security Scotland's decision that someone was liable to repay an overpayment.

3.6.2 Question 15: please give reasons for your answer.

Almost three-quarters of all consultation respondents (71%) answered Question 15, and the main feedback is outlined below.

Respondents who agreed with the proposal

Theme 1: people should be able to challenge liability for an overpayment

Many consultation respondents (individual respondents, public and third sector organisations) considered it important that people could challenge whether an overpayment had occurred and whether the overpayment was recoverable. These respondents felt there could be a range of circumstances in which an overpayment could occur, including administrative errors.

It was considered important that each case was assessed on its own merits as there might be mitigating factors.

Some of the points raised above are reflected in the following (selected) respondent quote.

"With overpayments - I don't really understand money so my disability means that what I could have reasonably expected to notice is radically different to a non-disabled person - how are you going to manage this without knowledge of how the disability affects an individual."

Attendee - People with lived experience of disability event

Some consultation respondents (individual respondents, public and third sector organisations) agreed that the Social Security Scotland process for considering whether an overpayment was recoverable should take into account hardship and for an appropriate payment plan to be agreed. Respondents also highlighted other considerations, including the impact of the recovery of an overpayment on a person's physical and mental health and wellbeing.

Points raised are reflected in the following (selected) respondent quotes.

"While we recognise that Social Security Scotland are committed to ensuring repayment plans are affordable for clients, having this extra layer of protection will also help to reduce the impact and risk of clients being pushed into debt as a result of mistaken liability."

Christians Against Poverty Scotland

"A system that has a blanket approach to overpayment being liable to be paid back lacks the opportunity for nuance where the responsibility for mistakes may not lie with the individual. Any system should be open to challenge as it will not be 100% accuracy with decisions 100% of the time."

The Scottish Association of Social Work (SASW)

Theme 2: it would be important to avoid court proceedings

Most consultation respondents (individual respondents, public and third sector organisations) supported the proposal as creating a right of challenge against a finding of liability for an overpayment could avoid court proceedings for people. This was considered consistent with a person-centred, human rights-based approach. Feedback from respondents was that the proposal could increase accountability and transparency of the Scottish social security system and greater alignment with the UK system.

Some of the points raised above are reflected in the following (selected) respondent quotes.

"Social Security Scotland should introduce a right to challenge recoverability decisions. This exists with [UK Government] benefits and as such the Scottish provisions should give appellants the same rights not less. The current situation where claimants of Scottish benefits need to have the question of recoverability considered in the court while other factors relating to the overpayment (quantification) can be determined by a tribunal is too complicated and intimidating. The tribunal is the best place to consider all the aspects of an overpayment."

Glasgow City Council

"Introducing rights of challenge against Social Security Scotland's decision that someone is liable to repay an overpayment would provide a more holistic, equitable and person-centred approach."

Stirling Council

3.6.3 Question 16: please provide your views on the most appropriate way to hear challenges against Social Security's decisions that someone is liable to repay an overpayment, bearing in mind that the aim is to avoid people having to go to court.

Around two-thirds of all consultation respondents (68%) provided an answer to Question 16.

Theme 1: preference for a consistent approach

A prevalent view among respondents (individual respondents, public and third sector organisations) was for a consistent approach within the Scottish social security system and for people to be able to challenge a Social Security Scotland decision at any stage of the process. It was suggested that the introduction of a right to challenge for overpayment liability would remove the need to go through the debt recovery process and wait for civil court proceedings. These respondents said that it could reduce the number of cases proceeding to court thereby reducing the stress and anxiety for people within the social security system.

Many of these respondents considered the most appropriate way to hear challenges was for Social Security Scotland to first look at its decision again when a challenge was raised with a possible re-determination and, if a person still disagreed, then for challenges to be heard at a First-tier Tribunal (Social Security Chamber).

Wider points raised included that:

• some respondents (mostly individual respondents) suggested that the re-determination step should be undertaken by an independent person or body
• a few third sector organisations suggested there might be scope to further streamline processes for cases where an individual is challenging both whether a benefit has been overpaid, and also whether that overpayment is recoverable.

Some of the points raised are further reflected in the following (selected) respondent quote.

"Enabling individuals to challenge overpayment liability though the same procedures as they would challenge a determination would be a logical approach. In particular, allowing them to request what would effectively amount to a re-determination of their liability would offer an opportunity for rectification without needing to involve either a Tribunal or civil court. Being granted the right to appeal liability for an overpayment, although still involving legal proceedings in the form of a Tribunal, would also likely allow for a less stressful means of resolving the issue."

Health and Social Care Alliance Scotland (The ALLIANCE)

Theme 2: other suggested approaches

Other approaches to hearing challenges against Social Security Scotland's decision that someone might be liable to repay an overpayment were suggested by a few individual respondents and third sector organisations. Approaches suggested included going straight to First-tier Tribunal (Social Security Chamber) in some cases, or an independent review. A third sector organisation also suggested that further engagement with people with lived experience of the social security system might be required to inform and determine the most appropriate approach.

The points raised above are reflected in the following (selected) respondent quote.

"An independent body, ideally a non-profit organisation (such as Citizens Advice Bureaus?) whose role is to mediate cases between Social Security Scotland and their clients…Clients should have the right to access advice and support in mediating with Social Security Scotland regarding repayment options, in the cases where clients accept liability."

NHS Greater Glasgow and Clyde