Consultation on regulations and statutory guidance under the Welfare Funds (Scotland) Act 2015: Analysis of Responses

10 VIEWS ON THE DRAFT REGULATIONS AND GUIDANCE

10.1 A copy of the draft regulations (The Welfare Funds (Scotland) Regulations 2015) was attached to the consultation document as Annex B, and the consultation document itself included a summary of each of the 17 sections of the regulations. The draft statutory guidance was attached to the consultation document as Annex C. The consultation posed three questions about this material:

Question 17: Do you think that the draft regulations at Annex B to this consultation paper will have the effects that we have listed here? (Yes / No)

Question 18: If you do not think that they will have these effects, please tell us about any gaps in the regulations or unintended consequences you would expect from these regulations.

Question 19: Please tell us about any concerns, comments or suggestions you have on the draft statutory guidance at Annex C to this consultation paper, that are not already covered by the questions in Section One of the consultation paper.

Views on the draft regulations (Q17 and Q18)

10.2 Table 10.1 below shows that three-quarters (74%) of respondents said ‘yes’ to Question 17, and a quarter said ‘no’. Local authorities, housing organisations, and individual respondents were more likely to reply ‘yes’, while third sector and ‘Other’ organisational respondents were more divided in their views.

Table 10.1: Do you think that the draft regulations at Annex B to this consultation paper will have the effects that we have listed here?

10.3 Altogether, 25 respondents (24 organisations and 1 individual) made comments at Question 18. There was a view that:

“[T]hese regulations have acknowledged and tried to address the complexities of delivering what is, in effect a limited resource ‘catch-all’ safety net, at a time of increased withdrawal of central government welfare support.” (‘Other’ organisational respondent)

10.4 Respondents welcomed the flexibility provided by the draft regulations (for example, to be able to consider more than three applications per year in exceptional circumstances). However, there was also a view that significant changes would be required in the current arrangements if the proposals set out in the consultation paper were to be taken forward, and irrespective of whether respondents ticked ‘yes’ or ‘no’ at Question 17, they often used Question 18 to suggest improvements, request clarification, or express concern about particular parts of the draft regulations.

10.5 Comments were sometimes very detailed and specific, with respondents requesting changes in wording or emphasis for one or more draft regulations, or suggesting additional regulations. There were also more general comments in relation to:

• Families under exceptional pressure: Respondents made a range of comments about regulation 9, and reiterated points previously made in response to Question 6. These are not repeated here. Additional points included: concern that a focus on families was not included in the 2015 Act itself; and a view that the use of the term ‘family’ in the draft regulations was unhelpful and misleading. There was also a request for clarity about the issue of ‘prioritisation’ of families, since regulation 9 referred only to ‘individuals’ and ‘households’ and the nature of the required prioritisation was unclear for CGs.
• Access to the Fund: In relation to regulation 7, there was concern that local authorities had complete discretion about how accessible (or not) their scheme was. Respondents wanted the draft regulations to be strengthened to specify a range of ways that applications to the Fund should be able to be made. One local authority respondent noted the success of their telephone application system and suggested the regulations should include provision for telephone applications. This was echoed by another respondent who thought the lack of a free phone number was barrier to some people in making applications.
• Reviews: Comments about regulation 15 all made the same point: there was a call for clarity about the requirement for applications for review to be made in writing and (apart from in exceptional circumstances) signed by the applicant. Respondents suggested this requirement contradicted the terms of the legislation which allowed local authorities to take applications for review orally, and with the draft statutory guidance (paragraphs 4.10-4.13) which emphasised the importance of accessibility. Respondents argued that some respondents would find it difficult to submit applications for review in writing, and this could hinder some people from requesting reviews.
• Eligibility: Respondents wanted the regulations to be strengthened to emphasise that being in receipt of means-tested benefits is not a prerequisite for applying to the Fund. It was suggested that the reference to means-tested benefits should be removed from the draft regulations for the sake of clarity. Furthermore, any reference to benefits within the draft regulations should relate not only to those ‘in receipt of’ benefits, but also those who are ‘entitled to’ certain benefits. There was also (as previously mentioned) a call for Disability Living Allowance, Attendance Allowance and the Personal Independence Payment to be disregarded as income.
• Form of payment: In relation to regulation 11, respondents wanted the draft regulations (and statutory guidance, sections 4.39, 7.6 and 7.26) to be amended to allow local authorities to have discretion to make awards in a variety of ways depending on, among other things, the views and preferences of the applicant and best value.
• Notification of decisions: In relation to regulation 14(1), respondents appreciated the need for the decision on an application to be communicated in writing for the sake of transparency. However, concern was voiced about the length of time it can take for some local authorities to notify applicants in writing about the outcome of their application. It was suggested that applicants should be able to request the decision to also be communicated to them in person or by telephone.

Other general comments

10.6 Other more general comments made, less often, were in relation to:

• The significant number of functions of the SWF set out in draft statutory guidance, rather than the 2015 Act or the draft regulations: There was concern that this leaves open the possibility that future governments could change the statutory guidance in ways that would be less open to scrutiny than if functions were specified in legislation.
• The relationship between UK and Scottish-funded benefits: Their view was expressed that benefit sanctions by the DWP will continue to increase as long as the SWF provides an adequate safety net, ‘thus creating savings for Westminster at the cost of Holyrood’.
• The importance of monitoring and publishing trends in the demand on the SWF.

Concerns, comments or suggestions about the draft statutory guidance (Q19)

10.7 Comments made in response to Question 19 were often very detailed and specific and many reiterated points discussed earlier. However, additional general comments about the draft statutory guidance highlighted the following:

• The importance of recognising the preventative nature of the Fund within the statutory guidance and regulations, and encouraging a more holistic approach to providing support and linking applicants with other sources of help
• At the same time, it was noted that not all applicants are willing to engage with other services when signposted to them, and this is not always discovered until a repeat application is submitted; it was suggested that the statutory guidance could provide for tighter restrictions on the ability to access repeat grants if an applicant refuses to engage with other supports
• The need to clarify what information can be shared between council departments for the benefit of claimants (for example, to speed up the award of grants by obtaining information directly from other areas within the council)
• The need for ongoing training for staff involved in the administration of the Fund to develop skills in assessing need, treating people with dignity, and in using their judgement / discretion, rather than adhering rigidly to a script; it was suggested this training should include direct contact with SWF users.

10.8 Further guidance and / or clarification was specifically requested in the draft guidance in relation to asylum seekers (e.g. ‘genuine prospect of work’, ‘recourse to public funds’, ‘habitual residence test’ and ‘indefinite right to remain’).

10.9 Concerns were expressed about:

• The proposal to reduce the frequency of reporting on the performance of the Fund, particularly in light of the continued underspends in some council areas, and the very high levels of demand in other areas which result in local funds being exhausted. Ongoing monitoring was thought to be crucial. There were also calls for improved promotion of the SWF, and a suggestion that there should be a way of redistributing underspends to areas where it is needed.
• Timescales for processing CGs. While there was a recognition of the importance of quick decision making, there was also concern that these arrangements could have unintended consequences for some, and that the requirement to provide a lot of information would be difficult for many people in a crisis.

10.10 There were questions about:

• The basis for the decision to transfer second tier reviews to the SPSO: This was seen to be inconsistent with existing complaints procedures where two reviews are held within councils before a complaint is referred to the SPSO. Moreover, it was thought that feedback from a previous consultation did not support this. There was a concern that the proposed new arrangement could increase overall administration costs for the Fund.
• What would happen if the Fund became exhausted between the date of application and the date of a decision or a review decision.
• How long a particular vulnerability (ref. Annex C of the draft statutory guidance) should be taken into account in relation to repeat applications.