Scotland's social security system: enhanced administration and compensation recovery - consultation

Improving client experience

A defining feature of our human rights approach to social security is that every aspect of the new system has been designed together with the people who know the system best – those who access and rely on services.

We have put client experience at the heart of the design and improvement of all our social security systems and services. As part of the work to develop and implement devolved social security powers, the Scottish Government undertook extensive research with the Social Security Experience Panels – over 2,000 people with lived experience of the social security system and with additional 'Seldom Heard Voices' groups, securing participation from the widest possible range of perspectives.

Our co-design approach to delivering this new public service is unprecedented in its scale and innovation. That is why it has attracted widespread support and interest from stakeholders (including the UN), academics, and other public authorities keen to learn more about the work taking place in Scottish social security.

There are numerous examples of how people with lived experience have directly influenced the development of policy, operational procedures and the style and format of communications. In the case of the social security Charter, people with lived experience were empowered to share decision making with Government, making key decisions about the commitments that should be made by Government.

The importance of client experience in developing Scotland's social security system is reflected in what people tell us about interacting with Social Security Scotland. In client surveys carried out between 2018 and 2021 a majority of respondents rated the service highly. Around nine in ten respondents said they were treated with dignity, fairness and respect, with a similar proportion agreeing that their time was not wasted by Social Security Scotland.

Each of the proposals in this section are aimed at building on those early achievements, and seeks to make the experience of the people who rely on the service provided by Social Security Scotland better still.

Scottish Child Payment

Background

The Scottish Child Payment is a transformative action to reduce child poverty as part of a wider strategy to support those who need it most and meet our challenging child poverty targets. Scottish Child Payment currently supports around 103,000 children under the age of 6 across each of Scotland's 32 local authority areas. The payment was doubled to £20 per week per child in April 2022 and will increase to £25 per week by the end of 2022.

There are no limits to the number of children per family who can receive the payment, and analysis suggests that over 400,000 children could benefit once the payment is fully rolled out to children under 16.

The Child Poverty Action Group called the payment "a hugely welcome development on the path to meeting Scotland's child poverty targets…a real lifeline for the families across Scotland who are facing a perfect storm of financial insecurity as the UK cut to universal credit bites, energy prices soar and the wider costs of living rise."

The payment is delivered under s79 of the Social Security (Scotland) Act 2018, which allows the top-up of a qualifying reserved benefit.

Issues to consider

A timetable of under 18 months from announcement to delivery of Scottish Child Payment has been unprecedented in the UK; testimony to the priority that the Scottish Government has put on tackling child poverty. Introducing Scottish Child Payment under the 'top-up' power in s79, which involved making secondary legislation, was the fastest way to deliver the payment. However, the legal route used to achieve that speed means that there are ways in which we know the payment lacks flexibility.

In order to receive Scottish Child Payment a person must be in receipt of a qualifying UK benefit, such as Universal Credit. As the relevant qualifying benefits are reserved to the UK Government, the Scottish Government cannot control the eligibility criteria for them. This approach has various advantages. In particular, it has allowed us to create a streamlined application process that we know people like.

However, we think it would be desirable to have additional flexibility over the rules governing Scottish Child Payment to be able to make changes in future. This could be in response to client and stakeholder feedback, or to react to potential changes to UK benefits that the UK Government may make, helping to future-proof Scottish Child Payment. We believe additional flexibility over the rules governing Scottish Child Payment would ensure we could align the payment more closely with other forms of Social Security Scotland assistance, such as Best Start Grant.

Q1. Do you agree or disagree that it would be useful to be able to make changes to Scottish Child Payment that were not limited by the current approach that relies on ‘top-up’ powers?

Agree / Disagree / Don’t know

Q2. Please give reasons for your answer.

Q3. Please give your views on the advantages that could arise from creating this additional flexibility.

Q4. Please give your views on the disadvantages that could arise from creating this additional flexibility.

Re-determinations

Background

Re-determinations are an important tool for ensuring that human rights remain at the centre of the Scottish social security system. Our key priority is to treat people with dignity, fairness and respect, and that means getting the decision right first time and quickly correcting any errors if they do occur.

Our processes for challenging decisions have been co-designed with people who have lived experience of the Department for Work and Pensions (DWP) system.

Re-determination in the Scottish system is different from the DWP process in the following ways:

• during the re-determination process, another officer in Social Security Scotland will consider the case afresh taking account of new evidence provided, and will make a new decision
• our intention is to ensure any request for a re-determination can be made simply and in a manner that is convenient for the client
• we publish clear procedures and timescales for making the re-determination
• if they are not met, the person can appeal directly to the First-tier Tribunal
• short-term assistance may be payable where a continuing payment is reduced or stopped and the individual asks for a re-determination or appeal of the decision to reduce or stop the continuing payment
• the value payable is the difference between the level of assistance paid under the earlier determination and the level paid under the later determination.

Issues to consider

Once a client has asked for a re-determination Social Security Scotland is under a statutory duty to make a new determination. A client has no way of withdrawing that request. Social Security Scotland has no option but to make a fresh determination, regardless of whether or not that client has changed their mind since asking.

The Scottish Government considers that the rights-based approach of Scottish Social Security is best served by letting clients decide whether or not a re-determination should in fact go ahead.

Clients may have had the benefit of additional advice or simply a chance to reflect on their options following the submission of a re-determination request, and we do not see any value in forcing them to go through a re-determination process against their wishes where they have changed their mind since submitting the request.

In line with the Scottish approach to social security, where clients are at the heart of everything Social Security Scotland does, we propose that the decision about whether or not a re-determination goes ahead should be one for the client to make.

It is important to note that where someone is in receipt of short-term assistance (STA) in respect of an ongoing determination, withdrawing the re-determination request will also have the effect of stopping the payment of any STA.

Q5. Do you agree or disagree that a client should be able to withdraw a re-determination request before Social Security Scotland has made a re-determination decision?

Agree / Disagree / Don’t know

Q6. Please give reasons for your answer.

Determinations after an appeal is lodged

Background

The Scottish Government is clear that people should have a right to challenge if they believe that Social Security Scotland has not made the right determination and that the challenge process is as simple and straightforward as possible.

Our processes have been co-designed with people who have lived experience of the DWP system. Our key priority is to treat people with dignity and respect and that means getting the decision right first time and quickly correcting any errors if they do occur. We will do all we can to support a person if they want to make an appeal.

Where Social Security Scotland has completed a re-determination and the client still disagrees with its decision they can appeal. Clients can also appeal if Social Security Scotland fails to make a re-determination in the time allowed by regulations. Appeals are made to the Social Security Chamber of the First-tier Tribunal for Scotland, which was created in November 2018. The Tribunal is administered by the Scottish Courts and Tribunals Service, which is independent of the Scottish Government.

In keeping with the Scottish Government's person-centred approach, the process for appeals ensures minimal burden on the client. If a client wants to appeal to the First-tier Tribunal they complete an appeal request form and return it to Social Security Scotland, which then forwards it to the Tribunal for consideration.

Issues to consider

Scottish Ministers cannot currently make a new determination if a client has appealed to the First-tier Tribunal, even if it is established after an appeal has been lodged that the client's award of assistance is wrong.

Where Social Security Scotland identifies that it has made an official error, or new evidence shows that the re-determination (or determination if the re-determination is not made in time) is incorrect, the appeal continues against the determination or re-determination. Social Security Scotland tells the Tribunal why it now considers its prior determination was wrong, but the appeal must proceed.

Introducing a mechanism for Social Security Scotland to make a new determination at this stage would mean that errors could be rectified early. We are considering whether the appeal should end as a consequence, which could prevent unnecessary appeals going ahead, and would mean that clients would not have to wait for the Tribunal to make a decision. This could reduce stress for clients by removing the need to go through a Tribunal hearing.

If Social Security Scotland was able to make a new determination after a client had requested an appeal, we also want to consider whether a new determination should only be made if the client consents.

Q7. Do you agree or disagree that a new determination should only be made if it gives the client everything they could get from the Tribunal?

Agree / Disagree / Don’t know

Q8. Please give reasons for your answer.

Q9. Do you agree or disagree that a client should be asked for their consent before a new determination is made?  

Agree / Disagree / Don’t know

Q10. Please give reasons for your answer.

Q11. Please provide your views on what challenge rights the client should have on the new determination.

Appointees

Background

Where a person lacks capacity to manage their own financial affairs, the DWP and Social Security Scotland can each appoint a person or organisation, known as an appointee, to act on that persons behalf. This means that when someone who lacks capacity applies for a form of assistance paid by Social Security Scotland, someone may already have been appointed under UK legislation to receive and manage their reserved UK benefits (e.g. Universal Credit, Employment Support Allowance).

The 2018 Act, and associated statutory guidelines, set out the law and processes that govern when Social Security Scotland can appoint another person to act for someone who lacks capacity to manage their assistance.

These differ markedly from those of the DWP. As a consequence, when a DWP appointee applies for any form of Social Security Scotland assistance on a person's behalf, we cannot currently automatically treat them as equivalent to a Social Security Scotland appointee, and allow them to act for assistance we administer.

Social Security Scotland must in all cases make its own assessment of whether an appointment is appropriate, using processes set out in statutory guidelines, which usually take the form of an interview with the client and potential appointee. For most of Social Security Scotland's assistance this will not cause any significant delay in processing of applications or determinations.

We have however identified some scenarios where it might be better for the individual making the application if Scottish Ministers had the flexibility to allow an existing DWP appointee to act for the client for a short period, pending an assessment by Social Security Scotland's Local Delivery team.

This approach has already been applied through regulations for case transfers from Child Disability Living Allowance and Personal Independence Payment, in order to minimise risk of a break in payments when moving between the two systems.

But it is not only when someone moves from one system to another that this approach could be beneficial. The devolution of social security powers means there could be people with entitlement in both the Scottish and UK systems. Scenarios where the extension of this approach to situations outside of case transfer could improve the client experience include:

• where a terminally ill person makes a first application for a Social Security Scotland benefit under the Special Rules, which must be expedited
• where an entitled person moves from another part of the UK and applies for any of our equivalent ongoing forms of assistance, for example Personal Independence Payment (PIP) to Adult Disability Payment, to prevent or minimise any break in payments
• where an application is made for a lower value or one-off or income related Scottish assistance, such as Scottish Child Payment or Funeral Support Payment, and waiting for the appointment process to be completed could significantly delay the determination of entitlement or payment

Issues to consider

Previous changes to our appointee legislation were made by the Social Security Administration and Tribunal Membership (Scotland) Act 2020. Those changes were intended to provide a clear statutory basis for transparent processes, and, in accordance with our rights-based approach, in line with the principles of the Adults with Incapacity (Scotland) Act 2000 and the United Nations Convention on the Rights of Person with Disabilities.

The proposals in this consultation would mean appointees who had not yet been subject to these new procedures would sometimes be able to apply for and receive assistance on behalf of a person for a short period of time.

There is a small risk that in some cases when the appointment is later reviewed by Social Security Scotland, it may be terminated. This could happen if the person was found to have been able to manage their assistance themselves or because, in a smaller proportion of cases, the appointee was unsuitable.

This risk however needs to be balanced with the potential benefits of having an application processed or payment made more quickly and easily, as in the situations outlined above. A balance requires to be struck between the protections afforded to the client by Social Security Scotland's appointee process, and the benefits of being paid their social security entitlement promptly.

Q12. Do you agree or disagree that Social Security Scotland should be able to make payments to a DWP appointee until it completes its appointee process?

Agree / Disagree / Don’t Know

Q13. Please give reasons for your answer.

Challenge rights for overpayment liability

Background

While our aim is to design robust processes and procedures to avoid overpayments of Scottish social security assistance, we know that they will happen, and where they do, we will learn lessons quickly and will continuously improve.

The Scottish Government has always been clear that overpayments that have occurred as a result of error should not be recovered where the individual did not cause or contribute to that error, or if it was the sort of error a person could not reasonably be expected to have noticed. Where an overpayment has occurred, it may be recovered by making deductions from future payments. Every effort will be made to contact the individual to agree a payment plan.

The person will have the opportunity to discuss any potential hardship repayment may cause, complete an affordability calculation and discuss their personal circumstances to enable the appropriate payment plan to be agreed. Where the person unreasonably refuses to agree a repayment plan, then enforced deductions may be considered - a maximum deduction rate of £10 or 10% (whichever is higher) every 4 weeks would be applied.

The determination which authorises the making of those deductions will be open to challenge. Like all decisions that form part of a determination of entitlement, it will have re-determination and appeal rights.

Where a person has no continuing entitlement to assistance, Social Security Scotland can still seek recovery. If Social Security Scotland has made reasonable efforts to seek recovery of debts owed, but the client has not repaid, then they may pursue recovery through the ordinary civil court processes. The Government is subject to the same legal rules that apply to private citizens seeking to recover a debt, such as the requirement to make reasonable requests for repayment prior to raising any court action, and the requirement to prove its case with evidence.

Issues to consider

Currently, where Social Security Scotland comes to the view that an overpayment has occurred, it will make a new determination on a client's entitlement to the benefit in question. Although this new determination will bring re-determination (and appeal) rights if the client disagrees and wants to challenge the decision, those rights of challenge do not currently include the right to challenge the narrower, separate decision on whether or not the client is liable to repay the overpayment.

For example, the person held liable for the overpayment might accept that an overpayment has in fact occurred, but may believe the overpayment was neither their fault nor an error that a person could have reasonably been expected to notice. Clients would be able to defend any court proceedings which may be raised by Social Security Scotland to recover any outstanding sums, but currently they cannot directly appeal the decision on their liability to the Tribunal. Clients may request an informal review, but this does not carry formal appeal rights.

The Scottish Government considers that its person-centred approach to social security is best served by creating a right of challenge against a finding of liability for an overpayment which avoids the delay and expense of potentially lengthy and stressful court proceedings for clients.

We would wish to consider where and by whom that challenge should be heard – for example, whether Social Security Scotland should first look at its decision again when a challenge is raised, or whether that challenge should go straight to a judge in the Social Security Chamber of the First-Tier Tribunal for Scotland.

Q14. Do you agree or disagree that the Scottish Government should introduce rights of challenge against Social Security Scotland’s decision that someone is liable to repay an overpayment?

Agree / Disagree / Don’t know

Q15. Please give reasons for your answer.

Q16. Please provide your views on the most appropriate way to hear challenges against Social Security’s decisions that someone is liable to repay an overpayment, bearing in mind that the aim is to avoid clients having to go to court.