Pension Age Winter Heating Payment: Business and Regulatory Impact Assessment (BRIA)

Consumer Assessment and Adherence to the Consumer Duty

The Consumer Duty

53. As of April 2024, the ‘Consumer Duty’ has replaced the ‘Consumer Assessment’ section of the BRIA. This is a statutory duty introduced by the Consumer Scotland Act 2020 which came into force on 1 April 2024.^[6] It places a duty on relevant public authorities in Scotland, including the Scottish Government, to improve the extent to which consumers are considered in strategic decision-making.

54. A key principle of the Duty is to ensure all public bodies are working towards improving outcomes for consumers as part of their strategic decision-making process.

55. The Scottish Government has a duty when making decisions of a strategic nature about how exercise their functions, to have regard to:

• the impact of those decisions on consumers in Scotland;
• the desirability of reducing harm to consumers in Scotland.

Requirements on relevant public authorities

56. The Act sets out four requirements on relevant public authorities:

• when making decisions of a strategic nature, have regard to the impact those decisions have on consumers;
• when making decisions of a strategic nature, have regard to the desirability of reducing harm to consumers;
• publication of information about the steps taken to meet the duty;
• having regard to this guidance.

57. The Scottish Government does not believe that PAWHP will have any impact on a ‘consumer’ - an individual or small business – who buys, uses or receives goods or service in Scotland, or could potentially do so, supplied by a public authority or other public body.

58. PAWHP does not directly or indirectly limit the choices of consumers. Nor does it impact on decisions made on consumers in Scotland, or limit the ability of consumers to compare the quality, availability or price of goods or services in a market. Furthermore, PAWHP will not impact a consumer's ability to understand their rights.

59. Consumer Assessment questions considered:

I. Does the policy affect the quality, availability or price of any goods or services in a market?

No

II. Does the policy affect the essential services market, such as energy or water?

No

III. Does the policy involve storage or increased use of consumer data?

No

IV. Does the policy increase opportunities for unscrupulous suppliers to target consumers?

No

V. Does the policy impact the information available to consumers on either goods or services, or their rights in relation to these?

No

VI. Does the policy affect routes for consumers to seek advice or raise complaints on consumer issues?

No

Test run of business forms

60. We foresee no need for new business forms as a result of this policy.

Legal Aid Impact Test

61. The right to appeal to a the First-tier Tribunal (Social Security Chamber) is provided for in the Social Security (Scotland) Act 2018. Civic legal aid will continue to be available to individuals to appeal an entitlement decision to the Upper Tribunal, Court of Session or Supreme Court.

62. The Scottish Government expects the impact on the Legal Aid budget to be minimal as a result of the introduction of PAWHP. Current recipients are already able to access legal aid to appeal entitlement decisions and the circumstances in which somebody could make an appeal are rare. Given that the majority of the caseload for this assistance will be paid automatically, the number of manual applications is expected to be fairly low. Due to the restriction of eligibility to those in receipt of relevant eligible benefits, there may be an increased number of appeals from those who are not entitled, however we do not anticipate the numbers to be significant.

Enforcement, sanctions, and monitoring

63. Section 97(2) of the Social Security (Scotland) Act 2018 requires the Scottish Ministers to inform the Scottish Commission on Social Security (SCoSS) of these proposals in the form of draft regulations. The Scottish Ministers provided draft regulations on our previous policy of universal eligibility to SCoSS shortly before laying this draft instrument in compliance with section 97(2).

64. As the exceptional circumstances require this instrument to be laid as a matter of urgency, it has not been possible to meet SCoSS requirements for the necessary time to scrutinise and publish a report on the regulations.

65. As such we are laying this draft instrument under section 97(9)(b) of the Act without a report from SCoSS having been prepared. The Scottish Ministers will respond to that report when it is published in accordance with section 97(10) of that Act. SCoSS has been informed of the urgent nature of these regulations, resulting from the UK Government’s recent decision to restrict eligibility to WFP, and it is content to scrutinise the regulations retrospectively.

66. The revised PAWHP regulations will be subject to affirmative procedure, which will require a plenary vote and the attendance of the Cabinet Secretary of Social Justice before the Social Justice and Social Security Committee.

67. The Social Security (Scotland) Act 2018 places a duty on the Scottish Ministers to publish an annual report on the performance of the Scottish social security system during the previous financial year. The report is to describe what the Scottish Ministers have done in that year to meet the expectations on them set out in the charter.

68. The Scottish Government intends to continue policy development on PAWHP, considering the longer-term development of this post-launch. Monitoring the impact of the PAWHP will be a continuous process.

69. We will collate management information to monitor the characteristics of recipients and will undertake qualitative research to test whether PAWHP is meeting its policy intentions.