Low Income Winter Heating Assistance: consultation analysis

6. Redetermination and appeals

The Social Security Act (Scotland) 2018 gives individuals a right to challenge a decision made by Social Security Scotland if they believe it is incorrect. The Scottish Government has proposed that a redetermination request for LIWHA should be made within 31 calendar days of being notified of the determination. It is also proposed that Social Security Scotland should then have 16 working days, beginning on the day the request is received, to make the fresh determination. This chapter presents analysis of Q28 to Q31 which cover this redetermination and appeals process.

Q28. Do you agree or disagree with the proposal that clients have 31 days to request a redetermination?

Q29. If you disagreed, please could you explain why?

There was a high level of agreement with the proposal that recipients have 31 days to request a redetermination. Over seven in ten (71%) agreed, 13% disagreed, 10% were unsure and 6% did not answer. The same levels of agreement were recorded by both individuals (71%) and organisations (72%). There were 16 free text responses to Q29.

Additional time required

The most prevalent theme in comments from the minority of respondents who disagreed with the proposed 31 day period was that people would need additional time to request a redetermination. A few respondents described the potential difficulties that groups such as disabled people, older people, digitally excluded groups and rural communities could face in meeting this deadline. It was felt that these groups could need longer to prepare a request for a redetermination, particularly because they might lack confidence or need to access additional support.

"Those in particularly poor financial circumstances may not always have the confidence to challenge a determination, particularly over a relatively 'small' amount of money like £50. Enabling potential recipients to confidently respond and appeal without uncertainty is something for the Scottish government to consider." – Christians Against Poverty

A few respondents suggested that longer timescales would be more appropriate. These include Child Poverty Action Group in Scotland, which called for individuals to have up to 13 months to request a redetermination, in line with the current CWP. An individual suggested 60 days. OPFS suggested 42 days in line with disability payments. Kirkpatrick Juxta Community Council felt that the period should be within one or two weeks, but did not explain why.

"In principle, we believe that someone in Scotland should have the same rights of appeal that they enjoy under the reserved system. A recipient of a Cold Weather Payment has up to 13 months to submit a mandatory reconsideration of a decision about their entitlement. Under the Scottish social security system an individual will only have 31 days – this is a significant erosion of their right to justice." – Child Poverty Action Group in Scotland

Requests for clarity about the redetermination period

Two respondents required clarity on the proposal. One was unsure if the proposal referred to 31 working days or calendar days (although the consultation document refers to 31 calendar days). The other was not clear if there would be any scope for an individual who failed to request a redetermination within the 31 days to receive support later in the winter.

Given that recipients will be identified automatically and without an application, two respondents questioned how individuals would know about the payment and the possibility of requesting a redetermination. Similarly, two respondents argued that a redetermination process should not be necessary if clear information is given to potential recipients.

"More fundamentally, it is also unclear how the Scottish Government intends to communicate a nil award to consumers ineligible for the proposed replacement for CWP. As it is proposed that consumers would not have to apply for the benefit and there would be no obvious trigger for payment, it is unclear how consumers might reasonably be expected to identify that an error may have been made in the determination of their eligibility for financial assistance. Consequently, it is also unclear how consumers with an unidentified eligibility for the proposed replacement for CWPs might reasonably know that they had the right in law to challenge a nil award that they considered to be incorrect, or when the time period in which a request for redetermination to be set out in regulations might commence." – Citizens Advice Scotland

"Ensuring that potential recipients are clearly informed should negate the requirement for a redetermination period. CAP would encourage high quality information be provided to households in advance of the qualifying date, to ensure that any errors are picked up and appealed by the households in question." – Christians Against Poverty

Q30. We have proposed that Social Security Scotland have a period of 16 working days to consider a redetermination of LIWHA. Do you agree or disagree with this proposal?

Q31. If you disagreed, please could you explain why?

Two thirds of respondents (66%) agreed with the proposal that Social Security Scotland should have a period of 16 working days to consider a redetermination of LIWHA. Fifteen per cent disagreed, 11% were unsure and 8% did not answer this question. While the same proportion of individuals and organisations agreed (65% and 67% respectively), individuals were more likely to disagree (19% compared to 6% of organisations). There were 20 responses to Q31, which explored disagreement with the proposal.

Another timescale preferred

Some respondents were concerned that a 16 day period is too long; this was the most prevalent theme in comments among the minority who disagreed with this aspect of the proposed approach. A few of these respondents emphasised that this is a long time to wait for people who need the money to pay for heating.

"16 working days is a fairly long time if you can't afford to heat your home or cook your dinner." - Individual

Two suggested alternative, shorter timescales - one within 14 days and the other within ten. An individual suggested a system for prioritising particularly vulnerable cases such as those at risk of being cut off or with high risk family members.

Conversely, a few individuals felt that a longer period might be required. One felt there might need to be more time to "check the facts" while another said 30 days would be more appropriate in case of any staffing issues related to Covid-19.

Requests for clarity and further information

Citizens Advice Scotland noted that more clarity was required about when the 16 day period would begin. They noted what appears to be an anomaly in the consultation document, where on p25 it is stated that the 16 day period begins on the day the request is received, while on the following page there is reference to the period starting on the next working day. Citizens Advice Scotland also commented on the inconsistency between the use of 16 working days for LIWHA, when references to calendar days are more common in other benefits administered by Social Security Scotland. They felt consistency in how timescales are defined would be beneficial to consumers. In addition, an individual queried the timescales for informing recipients of the redetermination result.

Two respondents who answered 'unsure' to Q30 felt unable to make an informed comment on the suitability of the proposed 16 day period. Citizens Advice Scotland called for more details on the process for identifying eligible recipients before they could assess whether 16 days is realistic, while Moray Council commented that the suitability of the proposal would "be dependent on staff workloads and quality of investigation/information review".