Best Start Grant: analysis of consultation responses

Request for a Re-Determination

Re-determination provides a right for an individual to challenge a determination for an award, should they disagree with it. The draft regulations set out the intention for the Scottish Social Security Agency to put aside the original determination and a different officer to undertake the full process of making a new determination, which will replace the earlier decision completely. The individual will be able to ask for a re-determination without having to supply further evidence, but the Agency will take into consideration any new evidence provided. If the individual is dissatisfied with the re-determination outcome, they can appeal that to the First-tier Tribunal.

Specific timescales were also set out, with a re-determination request relating to BSG to be made within 31 calendar days of being notified of the determination, and that Scottish Ministers should have 15 working days to make the fresh determination following receipt of the request. Contingency plans would also be in place for requests beyond the 31 day limit, with requests being accepted up to a year after the initial determination was made, provided there was a good reason for the delay (and with Scottish Ministers deciding whether the reason is a good one).

Consultation questions related to re-determinations focused upon the timescales proposed for the process.

Q8a. We have proposed that requests for a BSG re-determination should be made within 31 calendar days of receipt of notification of the original determination. Do you think this is an acceptable time period?

Response	Number	Percentage
Yes	27	53%
No	6	12%
Don't Know	2	4%
No quantitative response	16	31%
Total	51	100%

Over half of respondents agreed that this timescale was acceptable, with several noting this is in line with those applied to other benefits.

Of those that disagreed, this was typically because they felt the timescale was too short.

Several felt that a longer timescale was required (with some suggesting a six week/42 day period would be more suitable) to support new parents and to allow them to access any necessary support, independent advice, and/or evidence to facilitate the re-determination request. Some noted this would be particularly important to support those with mental health issues, those with chaotic lifestyles, victims of domestic abuse, young parents, kinship carers, and those with additional care responsibilities:

"This should be extended as many parents, particularly new parents, can often lose track of time or become mentally unwell/drained due to the pressures of new parenthood, lack of sleep, post-natal depression and the general overwhelming feelings that often occur after the birth of a child. Should they wish to seek help from elected members or CAB/welfare rights, getting appointments can take some time as can merely getting across the front door." (Individual)

Some respondents (both those who agreed and disagreed with the timescale) suggested that it would be important for the regulations to acknowledge and accommodate exceptional circumstances within the re-determination timeframe, with one respondent suggesting that the addition of a specific 'exceptional circumstances' clause could help to offset any such negative impacts:

"We think an 'exceptional circumstances' clause can be added which can be fair and just in its interpretation to ensure those facing additional challenges are not excluded from re-determination based on a procedural issue." (Organisation)

Another respondent felt the timescales required to process applications for many of the qualifying benefits would take longer than 31 days, thus having the potential to have initial BSG applications turned down and also to miss the 31 day re-determination window. They felt this would force claimants to either submit a late request for re-determination or to make a fresh claim (which would add additional administrative burden to both the applicant and Social Security Scotland), or could risk applicants doing neither and not receiving the BSG when they are entitled to it. Again, it was suggested that specific provision was required for this eventuality within the regulations:

"Entitlement to access a BSG will depend on entitlement to a qualifying benefit. Many of the qualifying benefits listed frequently take longer (sometimes significantly so) than 31 days to process. This means it is likely that an application for a BSG could be refused as a qualifying benefit has not yet been processed, only for the 31 days to have expired by the time this qualifying benefit is awarded." (Organisation)

Two respondents felt that, although the proposed timescale appeared sufficient, it was disproportionately short in comparison to the main application windows provided at each stage of the BSG:

"The Best Start Grant regulations appear [to] take account of the conflicting demands on parents around the time of each of the key life events when a Best Start Grant payment is available and, depending on which payment is being applied for, allows people between a year and a year and a half to make their application. The shorter application window of 31 calendar days for a re-determination does not seem to make the same consideration." (Organisation)

Other, more general points were also discussed regarding the re-determination process and timescales. One respondent, who was supportive of the timescale overall, discussed the need for more general support around the re-determination process that could help applicants and ensure they feel that staff are not trying to " trip them up":

"Standard procedures and guidelines in place for accessibility to the likes of independent advice should be communicated clearly through staff in a way that allows individuals to properly enforce their rights. [It has also been suggested that] the use of a steps-based system for re-determinations and subsequent appeals could be introduced. This should outline an effective and clear process for both workers and claimants. Frequent communication with complainants regarding outlining at which stage in the process their complaint is at would be welcomed." (Organisation)

Another felt there should be consistency in the time-limits for re-determinations across all benefits delivered by the new Scottish social security system:

"Under the new Scottish social security system, there should be statutory time limits for an internal review to be requested as well as for the Agency to make a re-determination. [We believe] it would be beneficial to have consistency across the new social security system if possible." (Organisation)

This same respondent also highlighted that the draft regulations did not include details of the timescale for making a re-determination and sought clarity on how this would be incorporated:

"The timescale for making a request for a re-determination does not appear in the draft regulations attached to the consultation document. [We] would welcome clarification on whether it is intended to insert this into the regulations, or whether these are to be made in alternative regulations, in order to meet the requirement to do so in section 41(4) of the Social Security Act… We would [also] welcome sight of the text of the proposed regulation, as the wording in the consultation document refers both to the timescale applying to '[making] the fresh determination' and 'processing' the re-determination which could be taken to mean different things." (Organisation)

Another respondent suggested that the whole re-determination process should become part of a single appeal process:

"Our suggestion is where a person appeals a decision that there is an option for the decision maker to reconsider their decision. However, in absence of a favourable revision the matter would then progress to an appeal without further action required from the claimant." (Organisation)

Q8b. We have proposed that a BSG re-determination should be processed within 15 working days of receipt of a request. Do you think this is an acceptable time period?

Response	Number	Percentage
Yes	31	61%
No	5	10%
Don't Know	1	2%
No quantitative response	14	27%
Total	51	100%

Many respondents felt that having re-determinations processed within 15 working days of receipt of a request was acceptable, with several noting this is comparable to Scottish Welfare Fund review process timescales and faster than re-determination/appeal timescales currently provided for Universal Credit and other benefits.

There appeared to be some confusion, however, amongst respondents as to who would be required to seek the necessary evidence to support an application/re-determination, with some perceiving the burden (and therefore time impact) of evidence to fall on the applicant when making the application/re-determination request, while others suggested the timescale for processing would be unrealistic where decision makers are seeking such evidence and that some mechanism would be needed to extend the processing period under such circumstances:

"As evidence would have been provided at point of original application this would reduce requirement for additional information requests and should allow for timely outcome." (Organisation)

"It will be important to ensure that systems are in place to avoid delays in decision making beyond the proposed 15 days while decision makers may be seeking further information/supporting evidence." (Organisation)

"It will be important to extend this if further evidence is required after the re-determination request has been submitted." (Organisation)

Of those that disagreed regarding the 15 day timescale for processing re-determinations, some felt that a shorter time period would be preferable (with respondents quoting 7 working days and 10 working days), while others advocated for a longer timescale which would ensure that decisions do not need to be rushed:

"Longer should be allowed for this so as not to give applicants an unrealistic timescale, if it is a busier period this may be difficult to stick to and it is better to be dealt with earlier than expected than to then add complaints to the tasks faced by those dealing with applications." (Individual)

Other, more general points included:

• the need to alert applicants to any delays to the processing of their re-determination and the reasons for these delays;
• that any additional evidence which could support the re-determination should be accepted during the processing period;
• for re-determinations to be considered again by the decision maker should additional information become available (in order to avoid an appeal hearing);
• to allow claims to be re-determined or re-claimed later if the individual is waiting for a qualifying benefit which is subsequently awarded;
• a need for clarity about whether an individual could make a second application for a BSG if they subsequently receive a qualifying benefit backdated to the period in which an original BSG application failed; and
• the need to commit to a statutory timeframe applicable across the Scottish social security system.

Suggestions were also put forward around the communication and process for the First-tier Tribunal. Two respondents were concerned around the potential for confusion for applicants in the language and process involved in progressing to the First-tier Tribunal:

"We feel particular care must be taken in the scenario where the Agency has failed to conduct the re-determination within the permitted time period, as it may be confusing to the claimant to find that the "appeal" (as most people will view it) that they submitted to the Agency has not been processed, yet they must submit another form asking for an appeal. We have been concerned throughout the passage of the Social Security (Scotland) Bill that this two-stage process risks claimants failing to exercise their right of appeal because they are confused by the process, frightened to challenge "the system", or fed up fighting for what they feel they are entitled to." (Organisation)

Indeed, one respondent felt that the move to the First-tier Tribunal should be more automatic, requiring an opt-out scenario for applicants rather than something they must initiate in the event of re-determinations not being processed within the specified timeframe:

"We believe the regulations should say: 'If there is a failure to make the re-determination within the 15 day period, the individual will be informed that unless they opt out their case will go to appeal to the First-tier Tribunal against the original determination'." (Organisation)