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

6 Coronavirus (COVID-19) measures

At the height of the global coronavirus (COVID-19) pandemic (2020), some temporary changes were made to the way that essential public services, such as social security, operated. Sections 52A and 52B of the 2018 Act were amended into the 2018 Act by the Coronavirus (Scotland) Act 2020. Section 52A means that a request for a re-determination must be considered valid beyond the maximum prescribed period of one year where the reason for the lateness was due to COVID-19. Otherwise, the 2018 Act only allows late requests for a re-determination within one year of the day when a person is informed about the determination, where there is a good reason.

Section 52A also has the effect that an appeal may be brought beyond the maximum prescribed period of one year where the Tribunal gives permission, on the basis that they are satisfied that the good reason for the application not having been made sooner is related to COVID-19. Section 52B then makes provision in relation to applications for assistance. Where eligibility for assistance depends on an application being made by a particular time, section 52B has the effect that a late application can be treated as made within that time, where the reason for the delay is related to COVID-19.

Thanks to the progress in vaccination and treatments, the Scottish Government intends to rely much less on legal restrictions going forward and much more on people and organisations taking basic, sensible steps to reduce the risk of harm from COVID-19.

The consultation sought views on whether timescales should return to their original lengths and asked whether or not the ability to apply late where there is a good reason should apply for reasons other than COVID-19.

6.1.1 Question 31: do you agree or disagree that requests for a re-determination should no longer be able to be treated as valid where they were made more than a year late and the reason for that delay was COVID-19?

Table C.25 and Table C.26 (Appendix C) provide the quantitative response to Question 31. Feedback from consultation respondents was relatively mixed and points to note include that:

• 40% of all consultation respondents who answered Question 31 agreed that requests for a re-determination should no longer be able to be treated as valid where they were made more than a year late and the reason for that delay was COVID-19
• 53% of consultation respondents disagreed with the proposal
• 7% of consultation respondents didn't know.

6.1.2 Question 32: please give reasons for your answer.

Half of all consultation respondents (50%) answered Question 32.

Respondents who agreed with the proposal

Theme 1: COVID-19 restrictions have more or less ended

Consultation respondents (mostly third sector organisations) who agreed that requests for a re-determination should no longer be treated as valid where they were made more than a year late and the reason for that delay was COVID-19, felt that the proposal was reasonable. These respondents felt that the temporary measure had served its purpose and were no longer required.

However, a few third sector organisations also highlighted that flexibility or discretion could be applied in exceptional circumstances, and in recognition of the disproportionate impact of the pandemic on particular groups of people. It was also suggested that there might need to be flexibility to re-introduce temporary measures in response to future external factors and events.

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

"The coronavirus measures brought in have served their purpose. At this point in the pandemic, we believe it is acceptable to remove these provisions. The existing timeline of one year is a reasonable timeframe for clients to be able to request a re-determination. However, we would highlight the importance of having the option to easily reinstate these measures if needed again in the future".

Christians Against Poverty Scotland

Respondents who disagreed with the proposal

Theme 1: ongoing impact of COVID-19

Most consultation respondents who disagreed with the proposal (predominantly individual respondents, and a few public and third sector organisations) said that the negative impacts of the pandemic were still being felt in society, and that the temporary measure might still be required. Given this, and the current uncertainty of the pandemic, these respondents suggested that the temporary measure should remain in place as it provided much needed flexibility within the social security system. Some of these respondents considered the year timeframe too short as the health implications of COVID-19 could extend beyond this.

Similarly, a few third sector organisations emphasised that they disagreed with the original one-year limit for re-determinations as it stopped people being able to demonstrate continuing good cause.

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

"Many businesses still have backlogs due to COVID-19 and continued staff absence. If a backlog hinders a client's ability to gain extra support with re-determinations then I think we still need to provide these exceptional rules".

Individual respondent

"There is still a high number of COVID-19 cases being reported and the ongoing possibility of a further epidemic outbreak. There are also cases of long COVID-19 illnesses that can last a considerable time and have a debilitating effect on sufferers and their ability to deal with their financial affairs or seek support for benefit issues".

One Parent Families Scotland

Respondent who answered don't know to the proposal

One third sector organisation stated that further research, including with Social Security Experience Panels, might be required to better understand the extent to which COVID-19 had been recorded as a reason for a delay to requests for re-determinations before a decision was finalised by the Scottish Government.

6.1.3 Question 33: do you agree or disagree that applications for an appeal should no longer be able to be treated as valid where they were made more than a year late and the reason for that delay was related to COVID-19?

Table C.27 and Table C.28 (Appendix C) provide the quantitative response to Question 33. This shows that:

• 41% of consultation respondents who answered Question 33 agreed with the proposal that applications for an appeal should no longer be able to be treated as valid where they were made more than a year late and the reason for that delay was related to COVID-19
• 53% of consultation respondents disagreed with the proposal
• 6% of consultation respondents didn't know.

6.1.4 Question 34: please give reasons for your answer.

Around half of all consultation respondents (52%) answered Question 34.

Some consultation respondents took the opportunity to repeat points raised to Question 32 such as the need for flexibility and discretion to allow cases to be considered on an individual basis. Other respondents did not provide a response to this question but rather directed attention back to their response to Question 32.

A respondent quote (selected) is provided below.

"The coronavirus measures brought in have served their purpose. At this point in the pandemic, we believe it is acceptable to remove these provisions as long as any backlogs related to the pandemic have been taken into account and do not prevent clients from being able to engage in the appeals process. The existing timeline of one year is a reasonable timeframe for clients to be able to submit an appeal. However, we would highlight the importance of having the option to easily reinstate these measures if needed again in the future."

Christians Against Poverty Scotland

Points raised by respondents who disagreed with the proposal are reflected in the following (selected) quote.

"It is possible that the client has had long-COVID, other health or social problems that are COVID-related, dispensation should be allowed for this."

NHS Greater Glasgow and Clyde

6.1.5 Question 35: do you agree or disagree that applications for assistance to Social Security Scotland should no longer be able to be treated as made on time where they were made late and the reason for that delay was related to COVID-19?

Table C.29 and Table C.30 (Appendix C) provide the quantitative response to Question 35. Feedback from respondents was relatively mixed, albeit more disagreed with the proposal. The findings show that:

• 38% of consultation respondents who answered Question 35 agreed that applications for assistance to Social Security Scotland should no longer be able to be treated as made on time where they are made late and the reason for that delay was related to COVID-19
• 56% of consultation respondents disagreed with the proposal
• 6% of consultation respondents didn't know.

6.1.6 Question 36: please give reasons for your answer.

Half of all consultation respondents (50%) provided a response to Question 36.

Social Security Scotland deadlines for applications vary between different forms of assistance. For example, the legislation for Adult Disability Payment gives an initial 8 weeks for an application to be completed. The consultation document explained that the effect of section 52B is that an application for Adult Disability Payment made outside the eight-week period could be treated as made within the initial eight weeks, where the delay was due to a reason related to COVID-19.

There is evidence that a few respondents were confused by the timescales for applications for appeals. These respondents made the assumption that, if applications for assistance to Social Security Scotland were no longer treated as made on time where they were made late and the reason for that delay was related to COVID-19, then individuals would have a window of a year to apply for assistance from Social Security Scotland. Some respondents responded to this question by directing attention to their answer to Question 32 which suggests a conflation of the two distinct proposals.

The confusion around timescales is reflected in the following (selected) respondent quote.

"A year is considered to be a sufficient time period within which submitted applications for assistance will be validated."

Stirling Council

6.1.7 Question 37: do you agree or disagree that the ability to apply late, where deadlines for making applications for assistance apply, should be extended to reasons other than COVID-19?

Table C.31 and Table C.32 (Appendix C) provide the quantitative response to Question 37. There was widespread support among respondents for the proposal, and points to note include that:

• almost all consultation respondents who answered Question 37 agreed (94%) that the ability to apply late, where deadlines for making applications for assistance apply, should be extended to reasons other than COVID-19
• the remainder of consultation respondents didn't know (6%).

6.1.8 Question 38: please give reasons for your answer.

Half of all consultation respondents (50%) provided a response to Question 38.

Respondents who agreed with the proposal

Theme 1: additional flexibility for all application deadlines

Most consultation respondents who agreed with the proposal (mainly third sector organisations) that the ability to apply late, where deadlines for making applications for assistance apply, should be extended to reasons other than COVID-19, felt that this could provide additional flexibility, discretion, and greater fairness within the social security system. These respondents highlighted that there were many different reasons why an applicant might apply late for assistance, and that greater flexibility could help ensure fairness for all, including particular groups of people such as people with mental health issues.

There was also respondent feedback that a more flexible approach could help ensure the Scottish social security system remained responsive to future external factors or events.

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

"There are many extraneous circumstances that may prevent an individual from meeting social security application deadlines, with some being more pertinent than others. It is therefore key that flexibility is provided, and a case-by-case basis approach is taken in order to empower claimants and create a more positive system. The barriers in place to claiming benefits are such that they are off-putting, by lifting deadlines to some extent, Social Security Scotland can help alleviate pressure felt by some of the most vulnerable in society."

Scottish Women's Convention

"The ability to apply late, where there is a good reason, should be extended across the range of benefits offered as this would create a more uniform approach that is in line with the ethos and values of Social Security Scotland. Currently there is a lack of consistency with some benefits, such as the Best Start Grants, having no flexibility built in while the new Adult Disability Payment does. Making all forms of social security the same will make things fairer, more straightforward, and easier for clients to navigate".

Christians Against Poverty Scotland

Theme 2: more accessible and straightforward application process

A few organisations in the third and public sector felt that the proposal could make application processes more accessible for individuals and more straightforward to assess for Social Security Scotland staff. One respondent felt that the proposal could address confusion over deadlines which may arise as a result of Social Security Scotland's recent creation.

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

"Claimants must have the ability to apply late where they, or an advocate or representative on their behalf, provides a reasonable explanation. Claimants who struggle to engage with the application process for a variety of reasons will be denied payment in arrears if they require to make fresh applications due to missing a deadline, reducing the ability of the system to tackle poverty and advance equality. Difficulty in engaging and with the application process and gathering evidence particularly affects those with mental health conditions and those who continue of necessity to live in an isolated fashion since the pandemic. It must be appreciated that Social Security Scotland is a new institution…will take time to develop, increasing the potential for delayed responses."

Citizens Advice Scotland