Suspension of Assistance (Disability Assistance for Children and Young People) (Scottish Child Payment) (Scotland) Regulations 2021 - draft: SCoSS scrutiny report

3. Scope of power to suspend

DACYP Regulation 26A and SCP Regulation 19A define the scope of the power to suspend, which is identical for both forms of social security assistance. In keeping with the Act, payment may be suspended following failure to provide (on request from Social Security Scotland) information material to the determination of ongoing entitlement,^[4] to protect the claimant from financial abuse,^[5] when a payee other than the claimant is unable to continue in that capacity or on request by the claimant. It is important to note that suspension can only apply to a situation where the continuance of payment/entitlement is the issue, not to initial claims.

Paragraph 1(1)(b) of schedule 11 to the 2018 Act (as amended) allows Scottish Government to specify essentially any other possible grounds for suspension of payments to a person other than the claimant, but in this case it has chosen not to do so. The Act and draft Regulations set clear boundaries on the circumstances in which the power to suspend is available and do not allow for its use in a punitive manner. Nonetheless, a number of issues remain.

3.1 Impact on human rights and social security principles

The draft Regulations will insert new provisions – DACYP Regulation 26A and SCP Regulation 19A – that set out the circumstances under which Social Security Scotland may suspend ongoing payment of CDP, or SCP.

A broad power to suspend payment of social security assistance, used arbitrarily, or punitively could clearly undermine the claimant's enjoyment of the right to social security. The suspension of a social security payment thus clearly has potential for interference with the individual's right to social security (article 9, International Covenant on Economic, Social and Cultural Rights (ICESCR) and to the peaceful enjoyment of their possessions (Protocol 1, Article 1, European Convention on Human Rights (ECHR)). The purpose for which payments are made means that suspension of SCP could also represent an interference with the right to respect for family life (article 8 ECHR), while suspension of CDP would arguably be an interference with the right to be included in the community (article 19, Convention on the Rights of Persons with Disabilities (CRPD)). However, suspension is a lesser interference with these rights than termination of all or part of the individual's award, which might previously have been the only available response to failure to provide information material to the determination of whether the individual remains entitled to Child Disability Payment (CDP), or Scottish Child Payment (SCP). The decision to limit the scope of the power to suspend also goes some way towards safeguarding against its use in a punitive or arbitrary manner.

However, in a situation where continued entitlement – the right to assistance – is in question,^[6] so too are the rights that flow from that. Conversely, where an individual has requested suspension, or where the person who receives payment on behalf of the individual is suspected of financial abuse, or unable to continue to accept payment, the individual's right to assistance is not in question. It is unclear what would have happened in the absence of a power to suspend in cases of suspected financial abuse, or if a payee were unable to continue to accept payment. Scottish Government has advised SCoSS that it would take legal advice on the matter, but might have no choice but to continue to make payment, while moving to identify a new payee as quickly as possible. In this context, the new power to suspend provides welcome clarity and reduces the risk of continuing to pay assistance to a person who is financially abusing the individual who is supposed to benefit from the award.

Also noteworthy is that the primary legislative provisions allowing for suspension of payments were introduced in response to lobbying by a coalition of stakeholders, who identified their absence as a shortcoming in the 2018 Act, as enacted. The amendment of the Act and subsequently of the DACYP and SCP Regulations is a possible example (in accordance with principle (g)) of improvement of the devolved social security system in a way that is in the interest of individuals whose awards might otherwise have been terminated, on the basis of evidence brought to Scottish Government's attention (in accordance with principle (f)). Suspending rather than terminating an award may also improve the efficiency of the social security system (in accordance with principle (h)) by reducing the need for reapplications.

Overall, therefore, the introduction of a power to suspend has potential to enhance the role of CDP and SCP in the realisation of the right to social security and other related rights, in accordance with principle (b), as long as the necessary safeguards are in place to protect individuals from its inappropriate use.

3.2 Suspending all or part of an award

DACYP Regulation 26A(1) refers to the suspension of "one component or both components" of a CDP award, while SCP Regulation 19A(1) refers to the suspension of "all or part" of a SCP award. This is in the context of Scottish Government's duty to consider the claimant's financial circumstances before taking a decision to suspend, rather than the actual power to suspend, which is established by DACYP Regulation 26A(2) and SCP Regulation 19A(2). These respectively state that "an individual's payment of Child Disability Payment may be suspended" and that "an individual's payment of Scottish child payment may be suspended" in the stipulated circumstances.

Some stakeholders have advised SCoSS that they believe greater clarity is required that, where there is doubt regarding entitlement to one component of a CDP award, or in respect of one child covered by a multi-child SCP award, the power to suspend only applies to that part of an award where entitlement is in doubt. On closer examination, SCP Regulation 19F(a) and schedule 11 paragraph 7 to the Act make clear that suspension may apply to "some or all" of the assistance to which the claimant would otherwise be entitled.

Scottish Government has advised SCoSS that the power to suspend following failure to provide information could be used when the information requested is in relation to a possible increase in entitlement. While it is clearly in the claimant's interest to provide such information, where there is no risk of overpayments accruing it is questionable whether an understandable desire to ensure people take up their full entitlements (in keeping with Our Charter)^[7] would override the negative effects of suspension. It is far from clear that there is any case for suspending an existing award, or those parts of one, where eligibility is not in doubt.

Recommendation 3: Where there is a failure to provide information which is only needed to decide a possible increase in entitlement, the existing award should not be suspended.

3.3 Time allowed to respond to requests for information

DACYP Regulation 26F and SCP Regulation 19F stipulate the minimum period that Social Security Scotland must allow for a claimant to respond to a request for information material to a possible determination of ongoing entitlement. A request for information must allow the claimant a minimum of 14 days to respond. On the first occasion that the claimant fails to provide the requested information within the deadline set, Social Security Scotland may suspend payment of assistance. Following another period of at least 14 days, the award may be terminated.

Some stakeholders have advised SCoSS that they believe this minimum period is too short. Scottish Government has told SCoSS that, in practice, they do not envisage any scenario in which the time limit for a response is set at less than 28 days. Further, payment will not automatically be suspended at the end of this 28-day period. If the claimant engages with Social Security Scotland then reasonable requests for additional time to supply the required information will be accommodated. We therefore question the logic of setting a minimum period of 14 days in the Regulations when there appears to be no expectation that the actual minimum period will ever be less than 28 days.

Recommendation 4: Scottish Government is invited to reconsider the minimum statutory time of 14 days for response to requests for information pertinent to ongoing eligibility, with a view to extending it to 28 days, and give reasons for retaining 14 days should that be its conclusion.

3.4 Bringing suspension to an end

DACYP Regulation 26D and SCP Regulation 19D set out the circumstances in which a suspension should be ended. When the suspension is on the grounds of failure to provide information, it can come to an end in three ways: when the claimant provides the information and Social Security Scotland decides there are no grounds to vary the award; when Social Security Scotland receives the information and decides the award should be varied or terminated and makes a determination to that effect; or when the claimant again fails to provide information within the required period and the award is terminated on that basis. If suspension is on the basis of suspected financial abuse or the absence of a suitable payee, then suspension ends when those circumstances no longer apply. DACYP Regulation 26E and SCP Regulation 19E then provide that, if it is clarified that the claimant was entitled to the suspended award during the period of suspension, a back payment will immediately be made.

SCoSS notes that inclusion of provisions on back payments is necessary to ensure individuals do not miss out on assistance to which they had a right during the period of suspension. There is a wider issue concerning what 'aftercare' Social Security Scotland can or ought to provide to individuals whose award comes to an end above and beyond their statutory entitlement to short-term assistance if they decide to challenge the determination. This applies whether termination comes at the end of a period of suspension or otherwise, and is particularly applicable where an award is terminated with overpayments outstanding. SCoSS would encourage Scottish Government to give this matter some thought, and we may return to the issue in the future within the scope of our oversight role in relation to the Charter.