Disability and Carers Benefits Expert Advisory Group minutes: June 2017

Attendees and apologies

Present

• Tressa Burke (chair 11.00-1.30) (TB)
• im McCormick (chair 1.30-3.00) (JMcC)
• Shaben Begum (SBe)
• Fiona Collie (FC)
• Chris Creegan (CC)
• Lucinda Godfrey (LG)
• Sarah Hammond (SH)
• Jim McGoldrick (JMcG)
• Ewan MacDonald (EMacD)
• Bill Scott (for SW)

In attendance

• Chris Boyland (Scottish Government) (CB)
• Trish Brady-Campbell (Scottish Government) (TB-C)
• Nicola Radley (Secretary) (NR)
• Hannah Reid (note taker – Secretariat)
• David Wallace (Scottish Government) (DW).

Apologies

• Sandra Black (SBl)
• Etienne d’Aboville (Ed’A)
• Alan McDevitt (AMcD)
• Angela O’Hagan (AO’H)
• Frank Reilly (FR)
• Carol Tannahill (CT)
• Billy Watson (BW)
• Ian Welsh (IW)
• Sally Witcher (SW)

Items and actions

TB welcomed everyone to the meeting. She would be chairing the first part of the meeting as JMcC was attending a funeral. Several Group members had volunteered to chair and TB thanked them. It was agreed that a Deputy Chair should be appointed.

DACBEAG2/300617/Action 1: Deputy Chair to be appointed. Action for: Secretariat / Chair. Action by: Deputy Chair to be in place by Meeting 3 on 31 August.

The Group was not quorate as there had been a number of apologies. This meant that agreement by correspondence would have to be sought for any decisions made at this meeting.

Workplan [DACBEAG2/300617/Paper 1]

A draft workplan had been prepared and it was proposed that this was accepted, with the caveat that it would be a working document, subject to review and change. TB emphasised that it was acceptable for there to be divergence of opinion among Group members, and also that the work proposed to be carried out by the Group had to be proportionate, taking into account priorities, timescales and members’ other roles, and to draw upon the particular areas of expertise and experience that they bring.

Group members commented that it would assist in the forming of initial advice to Ministers to have notes of the extraordinary sessions of the Group which took place on 6 June, i.e. Ministerial session on the legislation and Workplan discussion.

DACBEAG2/300617/Action 2: Notes of the extraordinary sessions of 6 June to be circulated. Action for: Secretariat. Action by: as soon as possible following meeting.

The Group discussed how the dignity and respect agenda should be addressed through their work, particularly in relation to the content of the workshop taking place on 14 September. The Group discussed what the definition should be, how specifically its application should be defined, for example as part of the assessment process and user journey, and whether it should be seperated out from considerations around human rights.

The Group agreed that the findings from the Experience Panels would give important evidence around the dignity and respect agenda to inform the Group. A suggestion was made that it would be useful to distill a checklist which set out clearly and specifically what dignity and respect should look like. This could be complemented with clear examples of what works.

The Group would revisit the Workplan at the end of the meeting to review whether any of the meeting content and discussion suggested that timescales or priorities should be changed.

The Social Security (Scotland) Bill – update and Group discussion

http://www.parliament.scot/parliamentarybusiness/Bills/105267.aspx

Chris Boyland, Social Security Policy Division, Legislation Team Leader, Scottish Government, presented to the Group on his role in managing the process of introducing the Bill.

CB explained that the current Bill presented a different way of working from usual as it needed to allow for the provision of services and systems which have not been fully scoped out yet. The Bill needed to establish a flexible enough framework to allow ongoing implementation work without unforeseen consequences.

CB acknowledged that putting in place the mechanism for the creation of new devolved benefits would potentially affect 1.4 million people who may not have had direct contact with the Scottish Government before.

Charter

CB spoke about the intention to introduce a charter, setting out measurable principles and accountability. This would not be drafted by the Scottish Government, who were not taking a fixed view of what it would look like. The Group asked whether the charter could encompass something like the previously mentioned dignity and respect ‘checklist’, i.e. a set of indicators, whether this could equate to the recently launched Health and Social Care principles, and whether complaints would be covered in the charter. CB indicated that all this was possible.

Illustrative Regulations

CB confirmed that illustrative regulations would be produced, and that priority would be given to those where there was intent to substantively change policy, and less where there is little intent to change, such as winter fuel and cold weather payments. A comment was made that although winter fuel and cold weather payments are not within the Group’s scope, they do impact on disabled people, so there would be interest in whether policy could be looked at around these. Also that there was a manifesto commitment to extending these benefits to families with disabled children, so eligibility would need to be reviewed.

CB said that the illustrative regulations were in the early drafting stages, but that there would only be a narrow window of opportunity to comment on these before publication. However, they could be picked up for comment at Stage 1.

The Group asked whether there would be separate sets of regulations covering eligibility and entitlement and claims and payments. CB said that the intention was to wrap this up into one set of regulations.

A group had been set up to look at local agency staffing requirements. Practical input would need to be considered in relation to the draft regulations. It was agreed that the agenda item with David Wallace could assist in giving clarity about sequencing and future proofing.

Assistance

The Group questioned the use of the term ‘assistance’. CB said this reflects the National Assistance Act 1948, and is aimed to re-establish the founding principles of the UK system.

The Group established that, although there was no policy intent to provide non-cash benefits, the Bill allowed the option for assistance to potentially be non-cash as a form of future proofing. The example given was that utility companies could be paid direct rather than giving cash for this to the recipient. The Group expressed concerns about the ability for cash benefits to be abolished in future without the need to go through Parliament. There was a potential for choice to be removed from people. A suggestion was made that the wording should be changed so cash is the default which people have a right to.

Overpayments

A fraud and liability process needed to be set out in the primary legislation. CB set out the intended principle to not recover overpayments made because of official error, except where the sums involved were significant.

The Group had a detailed discussion covering the current situation regarding overpayments and the potential consequences and fairness of the proposed approach. Concerns were expressed about the legal right to recover any repayment.

Challenging decisions

The primary legislation set out the key principles for the application process across all benefits (where relevant) and also the rights and options for appeal and challenge, with the Agency in the first instance, followed by escalation.

Although the process had not been designed yet, the Group was concerned that intentions to move to a process where a re-determination would be a new decision process from the start could create a situation where the onus is on the individual to submit further information.

Similarly, the Group was concerned that the primary legislation may limit the ways in which the process could design out problems with the current system that present people with barriers to accessing an independent appeal, in particular by requiring a separate application to progress from internal review to independent appeal.

Schedules

CB set out how schedules to the Bill give a framework for the eligibility rules. That framework then determines how regulations will give detailed rules for each type of assistance, such as carer’s assistance.

There was a question about whether the schedule for Carers Assistance would allow for future proofing whereby it could be possible in future to extend eligibility to groups, such as pensioners, who may have an underlying entitlement but were not currently eligible. Also whether there would be scope to acknowledge the individual differences of the impact of caring, irrespective of the number of hours undertaken etc. CB indicated that the regulation making power would allow that and would allow a definition of caring responsibility to be set out.

The Group commented that public confidence in the new Agency and processes was likely to be focussed on IT system delivery, and that it was important that lessons were learned from previous experiences.

Primary Legislation

The Group discussed whether enough detail is provided in the primary legislation. Concerns were expressed that leaving so much of the detail to be fleshed out in secondary legislation / regulations / guidance, could, notwithstanding current good intentions, leave scope for unintended consequences and less favourable changes resulting in erosion of rights to be made with relative ease in future.

There was a question about what consideration had been given to the risk around setting out legislation ahead of policy decisions. CB said that the risk of developing legislation which doesn’t allow you to do things you want and forces you to do things you don’t want had been mitigated by building in flexibility, and that there were also risks associated with not developing legislation until much later in the process.

Group members expressed that there was also risk involved with fewer rights being set out in primary legislation.

Summary of points to consider

TB summarised the key points emerging from the Social Security (Scotland) Bill discussion as follows:

• Risks around the potential reduction of rights;
• Potential for assistance to be made in non-cash format: how this relates to other rights, how this interacts with Social Care, potential unforeseen consequences;
• Advice and Advocacy: not mentioned in the primary legislation;
• Concern re proposals around overpayments, and the legal right to recover.

These could be further refined and developed by correspondence.

DACBEAG2/300617/Action 3: Key points from Social Security (Scotland) Bill discussion to be refined and developed for inclusion in first piece of advice to Ministers. Action for: Secretariat / Chair. Action by: In advance of first piece of advice being put to Ministers.

Agency Implementation – update and Group discussion

David Wallace, the Executive Director for Social Security Agency Implementation & Performance introduced himself to the Group, and expressed how the scale of movement to direct delivery would fundamentally change the Scottish Government’s relationship with citizens.

DW gave a brief overview of progress to date, from the announcement that there would be a Social Security Agency in Scotland, through the options appraisal exercise to scope out options, to the April 2017 statement confirming that the Agency will operate on a direct delivery basis. There was the intention that the Agency would have a strong local presence, with the co-location of services where possible. The April statement had also covered not using the private sector for assessments.

Dignity, respect and rights

The Group asked how dignity and respect would be embedded in the new Agency’s principles. DW indicated that rights would be built in via the charter, and that the Agency would work from the outset on the rights based approach of existing to provide customers with what they were entitled to, not an organisation that starts from the point of saying ‘no’.

While the Group agreed this was fundamentally the right approach, they acknowledged that experience shows this will not always be achieved. Although the charter would set out the overall approach and hold the Minister to account, the Group wanted to know where the rights of the individual were set out, if not in the charter or primary legislation.

Delivery

DW emphasised the importance of smooth transition to ensure consistency of payments in the first instance. The development of the IT platform and system(s) would be key to delivery, and following lessons learnt from other major IT projects, would now be subject to the Scottish Government’s new assurance process.

The Group asked about building a relationship with DWP. DW commented on the scale of DWP, meaning that although good relationships had been built, it was often difficult to identify all the correct people to speak to or a direct counterpart, as often no one person or team had end to end knowledge of a particular system, and benefits flow through multiple systems. However, a formal process for requesting information had been developed, and the Programme team have developed good structured relationships.

Staffing of Agency

Group members asked how many staff were likely to transfer on a TUPE basis [known as COSOP for transfers between Civil Service Departments], as there were concerns about trying to achieve a different outcome with the same people.

DW indicated that there was no pre-existing Agency infrastructure in Scotland and the benefits being devolved to Scotland were not necessarily currently being delivered from Scotland. Although there may be small pockets of people who would need to be considered on a like for like basis, it would not simply be a matter of ‘changing the signs over the door’. Requirements would be looked at on a benefit by benefit basis, and, for example, with Carers Allowance increase, there would be no staff to transfer as it is new and specific to Scotland. The Agency would be looking to actively recruit people with the rights skills and expertise.

The Group commented that staff would have to be able to help individuals navigate through the system, otherwise it was unlikely that people’s needs would be upheld. DW expressed the intention that Agency staff would know the system, and that processes would be geared towards helping people to do that.

Use of Experience Panels in Agency development

The Group asked how the Experience Panels would help to shape the Agency. DW said that the Experience Panels would continue over the next five years and that their input will be built in even after the work of the Agency becomes business as usual. The intention is for the Agency to remain visible and to become part of local delivery.

DW confirmed that future proofing is being looked at in the event of delivery of other benefits in future.

Experience Panels – update and Group discussion

Trish Brady-Campbell, Senior Research Officer, Scottish Government, gave an update of current Experience Panel progress. The recruitment phase was concluded, with over 2,400 signed up, and the first piece of research was about to be put out. Ethical procedures were in place to protect members from over use etc. Panel members had received a welcome letter from the Minister.

The panels were longitudinal, with people signed up for as long as they wished. The criteria was to have recent lived experience of benefits, not only as recipients, but also, for example, as unsuccessful applicants, parents, or people with power of attorney.

The format of the research would be flexible, seeking different experiences, and could take the form of short surveys, interviews, workshops, phone calls. People would be given the opportunity to co-design the research process.

TB-C gave some more background to the recruitment process and the demographic, split by benefit, of the people recruited. She then went on to speak about the first piece of research: ‘about our benefits and you’. This aimed to get more demographic information and find out what people thought was important. A series of focus groups will be run over the summer from which a one year programme of research will be developed.

The Group welcomed that people were being truly involved, not just consulted, and would be given an opportunity to share their ideas and stories, both positive and negative.

Demographic information

Stakeholder engagement and testing had shown that the entire suite of demographic questions should not be run at this stage. TB-C confirmed that this had been strongly recommended in order to build trust with participants, but that the first round would capture age, gender, condition and caring status.

The Group understood why the approach had been taken but was concerned that such a major longitudinal study may be left realising that there are gaps further down the line.

The Group questioned the representativeness of the recruited members, based on the high proportion who had a preference for email / digital communication, compared to statistics showing the relatively low percentage of disabled people who have access to online facilities. They feared that the successful push to recruit through social media had brought in a higher number of digitally enabled, predominantly younger, people, who could distort research findings on, for example, preferences for making claims. The higher proportion of young people was also reflected in the relatively low number of people recruited who were claiming Attendance Allowance.

Experience Panels to inform Group

The Group asked how requests to use the Experience Panels will be managed and co-ordinated. They anticipated wanting to do work with them later this year around assessment criteria. TB-C said a governance group had been set up at Director level, and that gathering of research requirements would be done in parallel with the first piece of research, through consultation across the Directorate, with this Group, the other reference groups, and other relevant stakeholders.

Workplan revisited

JMcC asked the Group if they would be content to sign off and publish the high level Workplan. The members present agreed that it should be published as the best reflection of the current position, but that it should be made clear that it would be revisited. As the meeting was not quorate, the plan would be circulated prior to publication.

DACBEAG2/300617/Action 4: Circulate the high level Workplan to the Group and publish. Action for: Secretariat. Action by: Two weeks after meeting.

JMcC asked the Group whether they were in agreement that a first piece of advice should be put to Ministers. They were. This would be agreed by correspondence.

DACBEAG2/300617/Action 5: Drafting and submission of Group’s first advice note to Ministers. Action for: Chair / Secretariat / All. Action by: Late August.

AoB and next meeting

There was a comment on the difficulty of getting through the agenda on time, while allowing everyone to take part in the discussion and protecting time for deliberation. An option would be to meet more frequently.

The next meeting is on 31 August.