Coronavirus (COVID-19) - compensation for self-isolation: consultation

The Consultation

This consultation relates to the proposal to prolong the modification of sections 56 and 58 of the 2008 Act, so that Health Boards are not under an obligation to pay compensation to people who the Boards requests to be quarantined, be excluded from entering or remaining in a specified place or refrain from carrying on any activity or type of activity, or carers of such people, for Covid-related reasons. The proposed modification will be similar to the one contained in paragraph 46 of schedule 21 of the UK Act but will modify sections 56 and 58 of the 2008 Act as regards Covid only, and not any other infectious diseases.

The modification created by paragraph 46 has the effect of changing the duty on Health Boards under section 56 of the 2008 Act to pay compensation to a person who receives a written request from the Board to be quarantined, be excluded from entering or remaining in a specified place or refrain from carrying on any activity or type of activity, to a discretionary power to pay compensation.

Paragraph 46 also modifies section 58 of the 2008 Act, so that the duty on Health Boards to pay compensation to the carers of people who receive a request under section 56 of the 2008 Act also becomes a discretionary power to pay compensation.

Should schedule 21 of the UK Act expire, or the statutory declaration under that schedule that ‘switches on’ the modification to sections 56 and 58 be revoked, whilst people are still self-isolating from COVID-19, there is a risk that Health Boards could face significant financial and administrative burdens.

The Scottish Government has already put in place significant levels of support to help people who are self-isolating, both financially and practically. The Self-Isolation Support Grant, a one-off payment of £500 to those who are isolating, is available to anyone who is required to do so whilst earning less than the real living wage, is in receipt of UC or other low-income benefits, or families who are within 25 per cent of the UC threshold. and, for those who lose income in the initial 48 hours before a PCR test, can evidence a loss of income.

In addition, the Local Self-Isolation Assistance Service has provided practical support for those who need it, arranging essential medicine or food deliveries or providing critical social or mental health support.

COVID-19 has been a once-in-a-generation challenge that has required both government and support services to operate at significant pace. By ensuring that Health Boards are not liable for further compensation claims, we can keep their focus fixed firmly on exiting this pandemic, and that current support remains in place. The original compensation duty in the 2008 Act was intended to apply to smaller outbreaks such as E-Coli, and not to mass pandemics such as COVID-19. The sheer scale of the COVID-19 pandemic necessitated emergency and wide-reaching support, which is why the Scottish Government put in place expansive measures such as the Self-Isolation Support Grant and the Local Self-Isolation Assistance Service.

It is therefore proposed that sections 56 and 58 of the 2008 Act should be modified until schedule 21 of the UK Act expires, or the declaration under that schedule is revoked. However, we acknowledge that sections 56 and 58 are currently modified to make the duty to pay compensation a discretionary power in relation to all infectious diseases.

The proposal is for the longer-term modification to make the compensation duty discretionary with respect to Covid-related requests from Health Boards only and for a limited period of time only.

It is proposed that the provisional expiry date of the modification to the power would be Autumn 2022. This date of expiry could then be extended or brought forward, if necessary, through regulation-making powers.

It is proposed that the conditions which will require an extension of the expiry for the modification would relate to the following considerations:

• that some people were still asked, under public health guidance, to isolate in certain circumstances;
• that alternative financial support for people self-isolating remained available either through the existing Self-Isolation Support Grant (SISG) or another mechanism;
• that expiry of the provisions would present a significant resource burden on territorial Health Boards.

Ministers will keep these factors under review and whether the expiry date should remain as proposed, brought forward or extended.

Financial Assistance for those needing to isolate due to COVID, including the Self-Isolation Support Grant and Local Self-Isolation support, will continue to be provided.

The Consultation Questions

Question 1:

Do you agree with proposals to modify the duty on Health Boards to make the payment of compensation related to self-isolation for Covid-19 discretionary?

Yes / No

If you have any comments on the proposal or your response please write them below:

It is proposed to extend the effect of the existing provision in the UK Coronavirus Act 2020 to make the compensation duty within the 2008 Act discretionary for Health Boards with respect to COVID-19-related self-isolation only and for a specified period.

Given the uncertainty around how COVID-19 will continue to affect Scotland in the longer term, the Scottish Government may need to expire these provisions early, or to extend the expiry date. Without such a power, it is possible that the provisions could be extended for longer than necessary, or expired earlier than is appropriate.

Question 2:

Do you agree that the Scottish Government should be able to vary the expiry date of these provisions?

Yes / No

If you have any comments on the proposal or your response please write them below:

It is proposed that circumstances that might give rise to a need to change the expiry date of the temporary provisions proposed would relate to three principal considerations:

• that some people were still asked, under public health guidance, to isolate in certain circumstances;
• that alternative financial support for people self-isolating remained available either through the existing Self-Isolation Support Grant (SISG) or another mechanism;
• that expiry of the provisions would present a significant resource burden on territorial Health Boards.

Question 3:

Do you agree that these are the most appropriate considerations for the Scottish Government to take into account when considering extending or bringing forward the expiry date for these provisions?

Yes / No

If you have any comments on the proposal or your response please write them below: