Draft Suspension of Assistance (Social Security) (Scotland) Regulations 2021: child rights and wellbeing assessment (CRWIA)

Draft Child Rights and Wellbeing Assessment: The Disability Assistance for Children and Young People and Scottish Child Payment (Suspensions) Amendment (Scotland) Regulations 2021

Date of publication:

Executive summary

The draft Regulations provide a framework for how Scottish Ministers will exercise the power to suspend awards of ongoing assistance under the Social Security (Scotland) Act 2018 in order to:

• ensure that vulnerable individuals are protected from the risks of economic and financial abuse, either by an appointee or by someone who is able to coercively control the individual’s finances;
• ensure that an individual’s entitlement to assistance does not prematurely come to an end because a person appointed to act on their behalf if unwilling or unsuitable to continue to act on their behalf;
• mitigatie the potential risks of an individual’s entitlement to assistance terminating as a result of a failure to provide information to Social Security Scotland, by providing an opportunity to engage; and
• protect individuals against the risk of overpayment if their circumstances have changed, but they have failed to engage with Social Security Scotland as part of a review of their entitlement.

The ability to suspend assistance was introduced at Stage 2 of the passing of the Social Security Administration and Tribunal Membership (Scotland) Bill 2020 which amended the 2018 Act. Section 12 of the 2020 Act does this by:

• adding a power to make regulations on when an individual’s ongoing entitlement to assistance can be suspended;
• adding Schedule 11 which makes provision about the exercise of the power to make regulations on suspension of assistance; and
• providing that Scottish Ministers can suspend assistance in accordance with these regulations if an individual does not provide information on request.

These regulations contribute to the National Outcome of “We tackle poverty by sharing opportunities, wealth and power more equally”.

We consider that of the eight wellbeing indicators (Safe, Healthy, Achieving, Nurtured, Active, Respected, Responsible, Included) set out in the Children and Young People (Scotland) Act 2014^[1], the policy relates to:

• Safe: protected from abuse, neglect or harm.

Of the UNCRC considerations, the policy relates to:

• Article 3 (best interests of the child): The best interests of the child must be a top priority in all decisions and actions that affect children.
• Article 23 (children with a disability): A child with a disability has the right to live a full and decent life with dignity and, as far as possible, independence and to play an active part in the community. Governments must do all they can to support disabled children and their families.
• Article 26 (Social Security): Every child has the right to benefit from Social Security. Governments must provide Social Security, including financial support and other benefits, to families in need of assistance.
• Article 27 (adequate standard of living): Every child has the right to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development.

Background

The Social Security (Scotland) Act 2018 received Royal Assent on 01 June 2018. The Equality Impact Assessment for the Social Security (Scotland) Bill was published on 20 June 2017 and is available here.

The 2018 Act transposed eleven benefits onto a Scottish legislative platform, allowing the Scottish Ministers to shape a new and distinctly Scottish benefits system, with dignity and respect being core to its approach. These are: Disability Living Allowance, Personal Independence Payment, Attendance Allowance, Severe Disablement Allowance and Industrial Injuries Scheme; Carer's Allowance; Sure Start Maternity Grants; Funeral Payments; Cold Weather Payments and Winter Fuel Payments; and Discretionary Housing Payments. The 2018 Act provides for a supplementary payment to persons receiving Carer’s Allowance, pending the transposition of that benefit onto a Scottish legislative platform.

The 2018 Act set out an overarching legislative framework for the administration of social security in Scotland, making provision for operational functions such as managing overpayments, fraud, error and appeals.

Under the 2018 Act as enacted, there was no mechanism to allow for the temporary suspension of payments whilst the individual remained entitled to the assistance in question – an individual was simply entitled to be paid, or they were not.

During the passage of the Social Security Administration and Tribunal Membership (Scotland) Bill, the Scottish Ministers brought forward an amendment at Stage 2 as a result of an appearance by the Cabinet Secretary before the social security committee that introduced a power to suspend payment of forms of assistance payable under the 2018 Act in prescribed circumstances.

The Scottish Government has been clear that the use of the power to suspend should not be punitive – it should be used to protect clients from the risk of overpayments, from financial abuse, and to give clients the opportunity to re-engage with Social Security Scotland if they fail to provide information where requested.

It should be acknowledged that the ability to suspend assistance interferes in an individuals’ right to that assistance. Being able to suspend in broad circumstances would not be showing due regard to the needs mentioned in the public sector equality duty. However, we believe that utilising suspensions in the manner expressed in the regulations provides sufficient specific circumstances and contains adequate safeguards which will allow suspensions to be used in such a way as to be beneficial to clients, including children and young people.

These regulations contribute to the National Outcome of “We tackle poverty by sharing opportunities, wealth and power more equally”.

The regulations provide that Scottish Ministers may suspend assistance in the following circumstances:

• under section 54(1A) of the 2018 Act, the Scottish Ministers have issued a decision to suspend assistance to the individual due to a failure to provide information which the individual is yet to provide,
• the Scottish Ministers have made arrangements for a person to receive the assistance on the individual's behalf, and the Scottish Ministers consider that it is necessary to suspend the assistance-
  • because the person with whom the Scottish Ministers have made arrangements is unable to continue to receive the assistance,
  • in order to protect the individual from the risk of financial abuse, or
• the individual has requested that the Scottish Ministers temporarily stop giving the assistance in question and is yet to request that they resume doing so.

This policy affects clients entitled to the following forms of ongoing assistance covered by the Social Security (Scotland) Act 2018.

These are:

• disability assistance (replacing Disability Living Allowance for children (DLAC), Personal Independence Payment (PIP) and Attendance Allowance (AA);
• carer’s assistance (replacing Carer’s Allowance);
• housing Assistance;
• employment injury assistance (replacing Industrial Injuries Disablement Benefit); and
• top-up assistance (such as the Scottish Child Payment).

It is not intended that these provisions be used in a punitive manner. Suspending assistance will only be used in situations where it is beneficial to temporarily stop payment of assistance; for example, to protect the client from potential overpayments or where it is not appropriate to continue paying assistance to someone on a client’s behalf.

Ground 1: An individual receiving assistance on a client’s behalf is unable to do so anymore or there is the possibility of financial abuse

The regulations will allow for suspension where the Scottish Ministers have made arrangements for a person to receive assistance on a client’s behalf and suspension is considered necessary because either the person with whom the Scottish Ministers have made arrangements is unable to continue to receive assistance, or in order to protect the client from financial abuse.

This is necessary as, according to a recent report, across the UK roughly 39% of adults have experienced economic abuse.^[2] A report by the Citizens Advice Bureau (CAB) also found that roughly half of respondents were involved in cases where someone controlled or interfered with their benefits.^[3] This will allow clients experiencing financial abuse to have their payments protected while the situation is investigated.

Additionally, there may be circumstances where someone is receiving assistance on another’s behalf where they are no longer legally able to do so. Because Social Security Scotland would be unable to legally continue paying this person on the client’s behalf, suspending assistance will allow the client to retain underlying entitlement while a new person is appointee to receive the assistance on their behalf.

The Scottish Ministers will be required to end the suspension when it is no longer necessary for either of these reasons. The client would then receive a backdated amount.

The policy intention is for the Scottish Ministers to consider suspending assistance if Ministers have been notified of a risk of financial abuse by a public authority responsible for investigating such matters. If the Scottish Ministers independently have grounds to believe that a client is at risk of financial abuse, then, instead of suspending assistance in the first instance, Ministers would look to share these concerns with a public authority whose public function is to investigate such matters. This would be done in accordance with an established public protection policy. The Scottish Ministers would then await advice from the public authority on whether to suspend assistance.

Ground 2: Suspending assistance at the request of the client

The regulations state that the Scottish Ministers may suspend assistance if a client requests that it temporarily stop and has yet to request that it resume. They will only do this when the reason for the request is in line with the policy intention of suspensions: to protect client’s payments. For example, a client may want their assistance suspended if another person has control of the bank account into which assistance is paid. This could occur if the client is experiencing domestic abuse and has to leave the family home.

The regulations will require the Scottish Ministers to end the suspension if the client asks for payment of their assistance to resume. The client will then be entitled to a backdated amount.

Ground 3: Failure to provide information

The Scottish Ministers can request information if it is needed to determine entitlement or when considering whether a determination without application is necessary. A client’s award may be suspended if they do not provide the information within a specified period. The Scottish Ministers will be required to have regard to the client’s financial circumstances before deciding to suspend assistance. At the point when the Scottish Ministers request information from the client, the client will be asked to tell Social Security Scotland if the suspension would cause hardship.

If assistance is suspended and the client provides the requested information, the Scottish Ministers will be required under the regulations to immediately consider if they are under a duty to make a determination without application. Such a duty would exist if, for example, the requested information confirms that there has been a change of circumstances that would possibly result in an alteration to the client’s level of award.

This will protect clients from potential overpayments while not removing underlying entitlement. It will also giving the client additional time to provide the necessary information.

The suspension must immediately end if the Scottish Ministers are not required to make a determination without application.

If the client requests a review of a decision to suspend, the Scottish Ministers will be required within a prescribed period to either:

• review the decision,
• or make a determination of entitlement (if Ministers are under a duty to do so), at which point the suspension must also end.

Safeguards

These regulations contain the following safeguards:

• a right to require the Scottish Ministers to review the decision to suspend;
• a duty on the Scottish Ministers to have regard to an individual’s financial circumstances before deciding to suspend assistance and when reviewing a decision to suspend assistance;
• provision on when suspension must end; and
• the right to be notified about:
  • a decision to suspend;
  • the reasons for the decision;
  • any steps that the individual might take in order for the Scottish Ministers to consider ending the suspension; and
  • the right to request a review of the decision.

Reviewing the decision to suspend assistance

A review of a decision to suspend assistance will be a two-part decision. First, the Scottish Ministers will decide if they are required under the regulations to end the suspension. In which case, the suspension must be immediately ended and the client will receive a backdated amount of assistance, under the latest determination of entitlement, in respect of the past-period when the suspension was in place.

If the Scottish Ministers decide that they are not required to end the suspension, they will then decide, at their discretion, whether or not to maintain the suspension, having regard to the individual’s financial circumstances.

Having regard to a client’s financial circumstances

The Scottish Ministers will trust what clients tell them about their circumstances and will not suspend assistance if it will cause financial hardship. If the Scottish Ministers decide not to suspend assistance, they will clearly communicate to the client the risk of continuing to receive assistance which they may become liable to repay at a later date.

Notification of suspension

Clients will be informed in writing:

• of the decision to suspend assistance;
• the reasons for the decision;
• of any steps that could be taken to end the suspension; and
• of their right to request a review of the decision.

Clients will also be informed in writing:

• when the suspension ends and how much they are immediately entitled to under the latest determination of entitlement as a result of the suspension ending; and
• the outcome of any review of the decision to suspend.

The Scottish Ministers may make an arrangement for a person who is not the client’s legal representative to receive assistance on the client’s behalf. Under the regulations, the Scottish Ministers will be able to notify this person about the same information that the client must be notified about. However, the person receiving assistance will not have a right to request a review of the suspension. Before exercising this power in individual cases, the Scottish Ministers will consider carefully whether notifying the person is in the interests of the client.

Scope of the CRWIA, identifying the children and young people affected by the policy, and summarising the evidence base

This impact assessment has been informed by extensive engagement with a range of external stakeholders as well as the wider public on a range of matters in relation to social security over a significant period of time.

In July 2016 the Scottish Government launched a public consultation to support the development of a framework that would become the Social Security (Scotland) Bill. 521 formal written responses were submitted, of which 241 were from organisations and 280 from individual respondents^[4].

In 2017 the Scottish Government set up Social Security Experience Panels, with over 2,400 people with lived experience across Scotland registering as panel members^[5].

The ‘Disability Assistance in Scotland’ Consultation launched in March 2019. This sought the views of the people of Scotland on the three proposed disability assistance benefits. The consultation received 263 replies, of which 74 were from stakeholder organisations and 189 were from individuals^[6].

The Scottish Government has also undertaken ongoing consultation with stakeholders through the Ill Health and Disability Benefits Stakeholder Reference Group, with input from Child Poverty Action Group in Scotland, Citizens Advice Scotland, Inclusion Scotland, Support in Mind Scotland and SAMH informing the high-level policy principles for suspensions.

Stakeholders also helpfully set out their views on the use of suspensions as part of a letter to the Cabinet Secretary for Social Security in June 2020, helping to further refine our policy approach to both the application of suspensions and the safeguards associated with them.

The Scottish Health Survey 2018 provides an accurate estimate of the number of disabled children and young people in Scotland. Within the 0-15 age group, 18% of children have a limiting longstanding illness^[7]. For young people aged 16-24, 24% of young people have a limiting longstanding illness.

In 2019, there were 867,345 children aged 15 and below in Scotland^[8]. As of August, 2020,^[9] there were 41,833 children entitled to Disability Living Allowance in Scotland. This accounts for around 4.2% of all children in Scotland.

The largest proportion of individuals entitled to DLA for children were between the ages of 11-15 (19,278). This was followed by individuals aged between 5-10 (18,596) and then 0-5 (3,960).^[10]

A recent report published by the Scottish Government^[11] found that the youngest adults had the highest poverty rates. Between 2017-20, 28% of young adults aged 16-24 were in relative poverty (140,000 adults each year), compared to 15% of adults aged 65 and older (150,000 adults). The age groups in between all had similar poverty rates between 17% and 19%

In 2017-20, 28% of children aged four and under were in relative poverty (80,000 children each year). This compares to 22% (100,000 children) of the five to twelve year-olds, and 25% (60,000) of teenagers.

After housing costs, the poverty rate was 29% (640,000 people each year) for people living with a disabled household member, and 16% (500,000 people) for those without when disability benefits such as DLA, AA or PIP were excluded.

There is also a positive correlation between disability and unemployment. Recent statistics have found that, compared to non-disabled people in the UK (81.7%), disabled people had a significantly lower rate of employment (53.6%).^[12] In Scotland, 45.6% of disabled people were employed compared to 81.1% of non-disabled individuals.^[13]

14% of ‘workless families’ (defined as families where parents are predominately out of work or have little connection to the labour market; who live in social rented accommodation and are reliant on benefits for their income) have one or more children with a disability or long-term illness. A further 17% of ‘struggling to get by’ families (unemployed or working part-time, half of which are single-parent families) have one or more children with a disability or long-term illness^[14]. Child material deprivation in households containing a disabled person reaches 20% compared to 8% of households without a disabled person.

Even where one or more parent in the household is in employment, within families with a disabled child, the same level of income secures a lower standard of living than it would for a disabled person. Research conducted by the Papworth Trust^[15] showed that the annual cost of bringing up a disabled child is three times greater than for a non-disabled child. Disabled people face higher costs than non-disabled people, such as the cost of specialist equipment, therapies and home adaptations to manage a condition^[16]. Travel costs too, may be higher as families have to afford the cost of taxis to and from hospital where it is not possible to use public transport (and/or public transport may not be available).

Wider context

The CRWIA should be read in conjunction with the other impact assessments conducted for the policy (namely, the Business and Regulatory Impact Assessment, The Island Communities Impact Assessment, the Equality Impact Assessment, and the Fairer Scotland Duty Assessment).

The Equality Impact Assessment (EQIA) for these regulations considers the potential impact of the policy on each of the protected characteristics which are also applicable to children and young people (for example race, religion or beliefs). A Business and Regulatory Impact Assessment (BRIA) considers the cost and benefits of the policy to businesses and the third sector. An Island Community Impact Assessment considers the potential impacts of the policy on people living in island and remote communities and any further barriers that they may face.

Children and young people’s views and experiences

Specific questions about key principles of social security in Scotland were asked as part of the Scottish Government’s Consultation on Social Security (2016), and further detailed questions about disability benefits for children and young people were asked in the Scottish Government’s Consultation on Disability Assistance in Scotland (2019). Scottish Government officials also gathered evidence from a range of sources to identify options to support children and young people through the disability benefits system.

Scottish Government Disability Benefits Policy Team officials and Community Analytical Division colleagues also examined evidence from a range of studies, reports and surveys as well as gathering the views and experiences of parents of children and young people.

Data and views were sourced from:

• Scottish Health Survey 2018;
• Census 2011;
• DWP Stat Xplore;
• National Records of Scotland Population Statistics;
• Consultation on social security in Scotland 2016 and
• Consultation on Disability Assistance in Scotland 2019

Key Findings, including an assessment of the impact on children’s rights, and how the measure will contribute to children’s wellbeing

Suspension when an appointee is no longer able to act

The 2018 Act (as amended) allows for Scottish Ministers to appoint a person to act on the client’s behalf in a narrow range of circumstances:

• to act on behalf of a child (under 16 years old) where there it appears to them that there is no one who has authority to act on behalf of the child, resides with, and has care of the child, and is willing and practicably able to act on the child’s behalf;
• to act on behalf of an adult (including young people between the ages of 16-18) where the individual is legally deemed to lack capacity to manage their own affairs; and
• to act on behalf of an adult (including young people between the ages of 16-18) where the individual is not legally deemed to lack capacity to manage their own affairs, but due to their circumstances, wishes for an appointee to act on their behalf.

There may be a range of circumstances in which an appointee is no longer able to act on the child or young person’s behalf, including their own illness or disability, the breakdown of a relationship, the changing dynamics within a family or changes to caring arrangements.

If it is clear that an appointee is no longer able to act and it is not appropriate to pay the client’s entitlement to them, then Scottish Ministers will have the power to temporarily suspend payment of assistance.

There are likely to be a number of complex family situations for some children who may be eligible for social security assistance but who are being cared for by someone who does not have parental rights and responsibilities (PRR) to act on their behalf. In these situations, an adult such as a grandparent, step-parent, older sibling or unmarried parent may be providing care and accommodation for a child on a daily basis.

Without the provisions within these regulations Scottish Ministers would not have an appropriate legal mechanism to temporarily stop payments in the absence of an appropriate adult to continue acting on the child’s behalf. These provisions will ensure that social security for children is equally accessible no matter the child’s family situation. It is considered to advance equality of opportunity among children who are entitled to social security assistance on account of disability.

The provisions relating to appointees for adults, including young people, legally deemed as having capacity to manage their own affairs, are considered to meet the needs of individuals who, because of difficult circumstances, may not be able to act for themselves or would find managing their entitlement to assistance to be a distressing experience.

Suspension to protect an individual from financial abuse (including at the individual’s request)

The Scottish Government believes that introduction of a power to temporarily suspend payment at the request of the client, or when Ministers consider it necessary to suspend payment to an appointee, will have a positive impact for children and young people who are experiencing economic or financial abuse, or coercive control.

For example, if a parent or other individual with PRR is receiving assistance on a child’s behalf, the ability to suspend assistance upon request would protect the child’s payments if the financial abuse is a part of domestic abuse where one parent is attempting to leave the family home with the child.

Alternatively, a young person may be experiencing financial abuse and request that payments stop until they are able to leave the family home themselves.

Failure to provide information

When suspending assistance, it is critically important that Social Security Scotland does so as a means of last resort, rather than the first. Suspension will often involve making a request for information. If the client fails to supply it, they are issued with a further request and informed that if they do not supply it, then assistance may be suspended.

Social Security Scotland will communicate with clients in a way that meets their needs. For example, around 7% of households communicate in languages other than English.^[17] Failing to communicate in a way that suits the client could mean that they are unaware of the need to provide information within a specified period. This could lead to a client’s award being suspended without the client realising the reason and receiving communications which are not accessible. A suspension under such circumstances could potentially cause hardship as there may be financial circumstances which Social Security Scotland would be unaware of before suspending assistance.

Where clients have additional requirements linked to language, culture or understanding of services, these need to be met effectively and all communications accessible.

In line with section 4 of the 2018 Act (recognition of importance of inclusive communication), all communications between Social Security Scotland and individuals must be accessible. Alongside the need for accessible communications required under section 4 of the 2018 Act, access to digital communications varies across differing age groups, with those aged 16 to 44 years using social networking sites significantly more than those aged 45 and over. Therefore Social Security Scotland will have to take this into account when designing communications that inform individuals of their responsibilities.

Safeguards

In relation to safeguards, it is important that these are put in place and of sufficient ability to protect clients, particularly in cases where another person is receiving assistance on the client’s behalf. This is because failure to do so could impact children and young people who, along with individuals with disabilities, are more likely to have an appointee.

Social Security Scotland staff will be supported by clear guidance on the use of suspensions, including. provision of safeguards so that a child or young person’s award is not suspended where it will be detrimental to them (such as causing hardship) or, should a client’s award be suspended, to allow the client (or in the case of children, their parents or the individual with PRR) to challenge that decision.

Our assessment of the impact of the policy on the relevant articles of the UNCRC is as follows:

Article 3 - Best interests of the child

When determining whether assistance should be suspended, Social Security Scotland (on behalf of Scottish Ministers) will take into account the client’s financial circumstances and whether suspending assistance will cause hardship. For children and young people, this will involve looking at the financial circumstances of their parent or guardian to whom the assistance is paid on their behalf. Should suspension potentially cause hardship to the child or young person, assistance would not be suspended.

Article 23 - Children with disabilities

Disabled children who meet the eligibility criteria in Scotland will be entitled to the Child Disability Payment (CDP). The cost of living for disabled children and young people is shown to be higher than for non-disabled children and young people. When determining whether suspending assistance would cause hardship, this will be taken into account when looking at the client’s financial circumstances.

Article 26 - Social security

The ability to suspend assistance interferes with an individual’s right to that assistance. However, we believe that utilising suspensions in the manner expressed in the regulations provides sufficient specific circumstances and contains adequate safeguards which will allow suspensions to be used in such a way as to be beneficial to clients, including children and young people, to protect from potential overpayments while allowing the individual to re-engage with Social Security Scotland so as not to lose entitlement entirely.

Article 27 - adequate standard of living

The suspension of assistance regulations provide that a client’s financial circumstances must be taken into account before the decision to suspend assistance can be made and, if it will cause hardship, assistance will not be suspended. This also applies to children and young people whose parent or guardian are receiving said assistance on their behalf. This will help to ensure that the child or young person continues to have an adequate standard of living as assistance would not be suspended should doing so cause hardship. Every child has the right to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development

The most relevant wellbeing indicators for this policy are:

Safe: One of the intentions of this policy is to protect clients, including children and young people, from financial abuse.

Monitoring and review

On-going stakeholder engagement with key organisations – such as the Child Poverty Action Group, Rights Advice Scotland, Young Scot, DACBEAG, and our Ill Health and Disability Benefit Stakeholder Reference Group – will provide the Scottish Government with an opportunity to monitor the impact of the changes made by these regulations.

The Communities Analysis Division within the Scottish Government will also run a comprehensive evaluation programme to consider the impact of the changes made by these regulations, with a full suite of equalities data for new applicants.

The Scottish Ministers have also committed to engaging with, and reporting regular progress to, the Islands Strategic Group to ensure that those representing the interests of island communities and others with experience of the current system, are fairly represented in the development and delivery of the Scottish social security system.

The 2018 Act places a duty on the Scottish Ministers to publish an annual report on the performance of the Scottish social security system. On-going engagement with key stakeholders will also provide the Scottish Government with an opportunity to monitor the impact of the policy.

Audit Scotland will monitor and report on the delivery of the social security system, including Social Security Scotland.

Regulation - Clause

Suspension of Assistance (Social Security) (Scotland) Regulations 2021

Aims of measure

These regulations detail how the Scottish Ministers will exercise the power to suspend awards of ongoing assistance under the Social Security (Scotland) Act 2018.

Likely to impact on . . .

Children, young people, and their families in Scotland who are entitled to assistance provided under the Social Security (Scotland) Act 2018

Compliance with UNCRC requirements

The regulations do not infringe upon any UNCRC Article. The Scottish Government considers that it gives further effect to:

• Article 3 (best interests of the child)
• Article 23 (children with disabilities)
• Article 26 (social security)
• Article 27 (adequate standard of living)

Contribution to local duties to safeguard, support and promote child wellbeing

The regulations do not infringe upon any of the indicators. They are likely to have a positive impact on the indicator of Safe.

CRWIA Declaration

Authorisation

Policy lead

Niall Wilson
Policy Manager
Social Security Policy Division

Date

Deputy Director or equivalent

Ian Davidson
Deputy Director
Social Security Policy Division

Date