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

Coronavirus (COVID-19) Measures

Background

In 2020, at the height of the global coronavirus (COVID-19) pandemic, some temporary changes were made to the way that essential public services, such as social security, operated. In addition, the Scottish Government considered that further support and flexibility for those using public services was necessary to reflect restrictions at that time, in both guidance and legislation, on the way people can live and work.

Sections 52A and 52B of the 2018 Act were amended into the 2018 Act by the Coronavirus (Scotland) Act 2020. The 2020 Act made a range of provisions designed to ensure that business and public services could continue to operate effectively during a period where controls on movements had been imposed, and when pressures on public services were acute due to increased absence rates.

Section 52A means that a request for a re-determination must be considered valid beyond the maximum prescribed period of one year where the reason for the lateness was due to COVID-19. Otherwise, the 2018 Act only allows late requests for a re-determination within one year of the day when the client is informed about the determination, where there is a good reason.

Section 52A also has the effect that an appeal may be brought beyond the maximum prescribed period of one year where the Tribunal gives permission, on the basis that they are satisfied that the good reason for the application not having been made sooner is related to COVID-19.

In all other instances, the 2018 Act provides that an appeal request cannot be brought if it is made more than one year after the day when the client is informed about the determination or re-determination that is being appealed.

Section 52B then makes provision in relation to applications for assistance. Where eligibility for assistance depends on an application being made by a particular time, section 52B has the effect that a late application can be treated as made within that time, where the reason for the delay is related to COVID-19. For example, the legislation for Adult Disability Payment prescribes an initial 8 weeks for an application to be completed. The effect of section 52B is that an application for Adult Disability Payment made outwith the 8 week period could be treated as made within the initial 8 weeks, where the delay was due to a reason related to COVID-19.

Some legislation already allows an application may be treated as made 'on time' (for example, in relation to Adult Disability Payment, within 8 weeks of starting the application) if there is good reason for the delay. Section 52B has the effect of making clear that COVID-19 can be a good reason for an application being made late. This does not prevent other reasons being 'good reasons', but these are not specified. There is no definitive list of good reasons.

Other forms of assistance, such as the Best Start Grants, have no flexibility for late applications other than the COVID-related reason in Section 52B of the 2018 Act.

Issues to consider

We cannot remove all of the uncertainty about the future caused by this virus, but there have been extraordinary advances in science and technology over the past two years that are enabling a more sustainable response to the virus; and therefore a return to greater normality that we all want to see.

Thanks to the progress in vaccination and treatments, we intend to rely much less on legal restrictions going forwards and much more on people and organisations taking basic, sensible steps to reduce the risk of harm from COVID-19.

As a result, there is a question of whether these particular exceptions remain necessary to address the effects of COVID-19, or whether timescales should return to their original lengths. There is also the question of whether or not the ability to apply late where there is a good reason should apply for reasons other than COVID-19.

Q31. Do you agree or disagree that requests for a re-determination should no longer be able to be treated as valid where they are made more than a year late and the reason for that delay is COVID-19?

Agree / Disagree / Don’t know

Q32. Please give reasons for your answer.

Q33. Do you agree or disagree that applications for an appeal should no longer be able to be treated as valid where they are made more than a year late and the reason for that delay is related to COVID-19?

Agree / Disagree / Don’t know

Q34. Please give reasons for your answer.

Q35. Do you agree or disagree that applications for assistance to Social Security Scotland should no longer be able to be treated as made on time where they are made late and the reason for that delay is related to COVID-19?

Agree / Disagree / Don’t know

Q36. Please give reasons for your answer.

Q37. Do you agree or disagree that the ability to apply late, where deadlines for making applications for assistance apply, should be extended to reasons other than COVID-19? 

Agree / Disagree / Don’t know

Q38. Please give reasons for your answer.