Scottish Commission on Social Security: annual report and accounts - 2020 to 2021

2. Performance Report

The Performance Report describes:

• SCoSS's purpose: its main statutory roles and its membership
• SCoSS's performance: how well it has performed these statutory roles
• SCoSS's continuous improvement: the steps the SCoSS Board has taken to ensure its work can be as effective as possible
• the risks that could affect SCoSS's performance and the action taken to mitigate them
• SCoSS's strategies and governance: the strategies SCoSS has agreed to ensure strong governance
• The Chair's statement and summary of the performance report also form part of the Performance Report.

In some instances, the annual report covers the period beyond March 2021 in order to demonstrate how SCoSS's work on governance, risk and performance has continued to develop.

2.1 SCoSS's purpose and structure

SCoSS is an independent, advisory non-departmental public body established by the Social Security (Scotland) Act 2018 ('the Act'). It provides expert advice to Scottish Ministers and the Scottish Parliament on devolved social security matters.

The Act sets out SCoSS's main roles, which can be summarised as follows—

1. SCoSS must be consulted by the Scottish Government on most regulations about social security assistance made under the Act^[1]. SCoSS scrutinises and reports on draft regulations. The Scottish Government may change its regulations after considering SCoSS's recommendations. When it lays the regulations in the Scottish Parliament, it must publish its response to SCoSS's report at the same time. The Scottish Parliament's Social Security Committee (now the Social Justice and Social Security Committee) then scrutinises the regulations and may take evidence from SCoSS members when it does so.

2. SCoSS must report, from time to time, to Scottish Ministers and the Scottish Parliament on whether the expectations in the Scottish social security charter ('Our Charter') are being met and make recommendations for improvement if they are not. Our Charter was published by the Scottish Government and Social SecurityScotland. It explains what the social security principles contained within the Act mean in practice and what people are entitled to expect from the Scottish Government and Social Security Scotland. SCoSS must consider reporting if it receives evidence that the Charter expectations are frequently not being fulfilled.

3. The Scottish Parliament or the Scottish Government can ask SCoSS to report on any matter relevant to social security.

In undertaking its statutory duties SCoSS takes full account of the social security principles contained within the Act^[2] and of relevant human rights obligations as defined by the Act.

SCoSS Board members, including the Chair, are non-executive appointments made by the Scottish Ministers in line with the Code of Practice for Ministerial Public Appointments in Scotland. The Chair is responsible for providing leadership to ensure that the Board delivers its functions efficiently and effectively. The Chair is accountable to the Scottish Ministers and may also be held to account by the Scottish

Parliament. The role of Board members is to provide direction, support and guidance to ensure that SCoSS delivers its functions effectively and efficiently, in accordance with the Act.

The four current SCoSS members were appointed for periods of three or four years. Members may devote up to 36 days a year to perform their functions, apart from the Chair, who may devote up to 60 days. SCoSS is supported by a small secretariat employed by the Scottish Government.

The Act allows up to five commissioners to be appointed. As Member absence, Commission size and unmanageable workloads are considered risks for Board Members and are recorded in the risk register, in order to ensure that it is able to discharge its statutory functions effectively, SCoSS has requested that the Scottish Government take steps to appoint a fifth Board member. We have stressed the importance of the appointment process being fully accessible.

In response to a recommendation made by Audit Scotland in its 2019-20 audit report, SCoSS is looking into the possibility of appointing an independent, external consultant to attend appropriate Board meetings to test and advise the Board on the exercise of their audit functions. This appointment would not be a full member of the SCoSS Board and would be, in effect, an adviser appointed by Scottish Ministers to carry out the specific requirements relating to the auditing functions of SCoSS. This is in accordance with the requirement in the Act^[3] that "Scottish Ministers are to provide the Commission with such staff and other resources as it requires to carry out its functions".

During the course of the year, SCoSS scrutinised and reported on 5 sets of draft regulations. We also carried out some preparatory work with regard to reporting on the Charter but have not yet issued a report. No requests from were received from the Scottish Parliament or Scottish Government to report on matters related to social security. SCoSS held 9 Board meetings between 1 April 2020 and 31 March 2021. SCoSS has no physical offices and whereas in the previous year meetings were primarily held at the Scottish Government building Victoria Quay in Edinburgh, the Covid-19 pandemic meant that all Board meetings were conducted virtually. To ensure that its decision-making and proceedings are transparent, the minutes of all SCoSS's Board meetings are published on its temporary webpage (the establishment of an independent website is in progress). SCoSS's scrutiny reports and corporate documents are also publicly available.

2.2 SCoSS's vision and strategic objectives

Our interim report set out SCoSS's vision, which informs the delivery of our statutory functions:

• For Scottish social security: A robust, effective and efficient Scottish social security system that meets its full potential to improve outcomes for the people of Scotland
• For SCoSS: To help achieve the vision for Scottish social security by providing independent expert advice that adds demonstrable and significant value.

Strategies

SCoSS has continued to develop strategies for discharging its objectives, corporate functions and governance responsibilities. In general, the Board has ensured proportionate compliance with best practice principles and relevant guidance around corporate governance, primarily as described in 'On Board'.

More specifically, SCoSS and the Scottish Government have agreed a joint protocol that describes our respective roles, information needs and timelines to enable effective scrutiny to be undertaken. In last year's performance report, we noted some significant concerns around the lack of time available to SCoSS to produce reports on draft regulations. We hope the protocol should significantly improve, if not resolve, these issues. However, the SCoSS Board does intend to propose an amendment to the protocol to state that SCoSS may decide not to produce a scrutiny report on draft regulations where the timetable for doing so is clearly unworkable.

While our Framework Document with the Scottish Government was agreed in this reporting year, it was discussed quite extensively in last year's annual report and accounts. Board members were concerned to ensure that it fully reflects SCoSS's independence and accountability, in line with the Act. In relation to concerns raised by SCoSS, the Scottish Government has provided an annex to the Framework Document that clarifies delegated spending authority, and lines of financial accountability more generally. The Framework Document will be reviewed in 2022, including to see how the concentration of roles in the Deputy Director is playing out in practice. The Deputy Director is the SCoSS Accountable Officer, is responsible for the sponsor team, line manages the SCoSS Lead Secretary and is the person to whom the SCoSS Chair reports.

Following the agreement of the Framework Document, the Board was able to agree the type and frequency of budgetary information it required to discharge its financial responsibilities. The Board now receives quarterly financial updates showing SCoSS's expenditure to date and projected for the current financial year, and comparison of spend against the budget. It was further agreed reports should include updates on the progress of the audit and this has been progressed in the following reporting year. This approach reflects SCoSS's comparatively small budget of £340,000, and the fact a significant proportion of it represents expenditure on secretariat salaries. It is also cognisant of the breadth of financial controls employed by the Scottish Government to ensure that the SCoSS and its Secretariat discharge their financial responsibilities appropriately. SCoSS also identified areas of savings in its budget for 2020-21, as requested by the Scottish Government.

SCoSS has agreed various other strategies to help it discharge its objectives and establish strong governance, for example—

• The Board agreed a Memorandum of Understanding with the Scottish Government on Freedom of Information and on Information Sharing.
• The Board agreed a draft qualifying disclosures (or 'whistleblowing') policy under the Public Interest Disclosures Act 1998.
• The Board agreed its complaints handling procedure.

2.3 Analysis of SCoSS's performance

In common with last year, a considerable proportion of the Board's time this year has been devoted to scrutinising and reporting on draft regulations referred by the Scottish Government. We consider the effectiveness of our scrutiny below, but first reflect on the extent to which we have delivered the priorities outlined in our interim report.

SCoSS had intended to produce a full business plan in 2020, however, the disruption caused by Covid meant there was some uncertainty over the Scottish Government's timetable for referring draft regulations. The interim report, published in October 2020, therefore described the other main pieces of work that SCoSS would seek to progress^[4]. The progress made is assessed below (although not all of the priorities were to be delivered in the financial year in question)—

• Monitor how the Scottish Government and the Social Security Committee take account of its reports, to ensure SCoSS is being effective and influential. SCoSS assesses all Scottish Government responses to its scrutiny reports to understand which of its recommendations have and have not been accepted (we consider this in more detail in the following section). Even where a recommendation is not accepted, members will consider the Scottish Government's feedback to understand whether it could inform its subsequent scrutiny. SCoSS also monitors Social Security Committee evidence sessions to understand how it has used our reports to inform its scrutiny. This continues to be an active and ongoing process of continuous improvement.
• Devise an effective and inclusive approach to undertaking SCoSS's reporting duties on the Charter. As part of SCoSS's Covid response, we asked the Scottish Government and Social Security Scotland about the action they would take to ensure that Charter commitments, social security principles and human rights obligations continued to be met which was completed in this reporting year. We also considered how SCoSS could discharge its statutory responsibility to consider reporting on whether the expectations in the Social Security Charter are being met if it receives evidence suggesting that expectations are frequently not being fulfilled. We will produce a draft statement on this matter in the next reporting year, which will be conveyed to stakeholders.
• Embed a 'lessons learned' culture, where SCoSS always reviews the effectiveness of its work to identify where improvements could be made. After the publication of each SCoSS scrutiny report, members will discuss whether SCoSS could have done anything better. Any improvements identified are added to SCoSS's 'scrutiny checklist', which aims to create a consistent approach to scrutinising draft regulations. We say more about SCoSS's continuous improvement below. This has been undertaken in the current reporting year and is an ongoing process as part of SCoSS's continuous improvement.
• Strengthen the expertise of the SCoSS Board by recruiting an additional member. The Scottish Government is actively progressing SCoSS's request for a 5^th Board member to be appointed. It is expected that a 5^th Board member will be appointed in the next reporting year.
• Continue developing SCoSS's relationships with the Social Security Committee and the Scottish Government to make sure SCoSS is adding value while maintaining its independence. SCoSS has regularly sought feedback from Scottish Government officials, the Cabinet Secretary and the convener of the Social Security Committee on its performance and the value it is adding, while taking care to emphasise its independence. This has been undertaken in this reporting year and will be ongoing as part of SCoSS's continuous improvement.
• Continue exploring how SCoSS can best involve people with lived experience in its scrutiny work, to help ensure that draft regulations have a positive impact on their lives. The SCoSS Board has agreed to explore the establishment of a 'lived experience network', which would aim to ensure the voices and experiences of those who use the social security system are captured and embedded in SCoSS's functions. SCoSS is considering how best this goal can be achieved, while taking into account the sometimes significant time constraints it faces in scrutinising draft regulations. It is likely that this work will continue into the next reporting year.
• Implement a stakeholder engagement plan and strengthen SCoSS's relationships with other key stakeholders including Social Security Scotland, academic and third sector experts, and colleagues in the Social Security Advisory Committee, which scrutinises the UK social security system. SCoSS has drafted a written agreement with the Disability and Carers Benefits Expert Advisory Group (DACBEAG) that it is seeking to agree formally. Members consider that working together in an appropriate manner could inform SCoSS's scrutiny and allow it to add value, while maintaining its statutory independence. It is anticipated that this will be formally agreed in the next reporting year.
• Consider whether to establish any sub-committees. This is still being considered as part of the ongoing discussions on engaging with individuals and groups with lived experience and will continue to be progressed in 2021-22.
• Consider holding on-line stakeholder consultation events to inform SCoSS's scrutiny of draft regulations. As above, this is still being considered as part of the ongoing discussions on engaging with individuals and groups with lived experience and will continue to be progressed in 2021-22.
• Invite feedback from stakeholders on SCoSS's events and reports, and from Scottish Government officials attending Board meetings. Covid has meant that there have been no formal SCoSS events, however, we have drafted a pro forma to capture feedback from officials who attend our Board meetings. This has been undertaken in this reporting year and will be an ongoing process as part of SCoSS's continuous improvement.
• Deliver on all of SCoSS's corporate responsibilities, ensuring that it creates a sound governance framework and demonstrates value for money through its audited accounts. SCoSS has agreed the Memorandum of Understanding with the Scottish Government on Freedom of Information and on Information Sharing, draft disqualifying procedure and complaints handling procedure in this reporting year.
• Develop a new website that is transparent, inclusive and provides full access to SCoSS's reports and minutes. The website is in the process of being built and is expected to be live by Autumn 2021.
• Work to provide information in accessible formats, and invest in accessible, inclusive communications. SCoSS has accessibility at the core of its website design and build and it is anticipated that documents available in alternative formats will continue to be developed in the next reporting year.

SCoSS's performance met expectations over the reporting year, despite the challenges and changes that Covid brought, as we produced scrutiny reports that made positive changes to the Social Security system in Scotland and strengthened our governance framework.

2.4 SCoSS's scrutiny of draft regulations

Within the reporting period of these accounts SCoSS produced five substantive reports on draft regulations^[5]. We are pleased that, similar to last year's performance, more than 80% of SCoSS's recommendations were accepted, at least in part, by the Scottish Government^[6]. In addition, officials responded to suggestions for improvement made by SCoSS during our ongoing scrutiny, which were not recorded as formal recommendations in our reports.

The response to our recommendations demonstrates that SCoSS's independent scrutiny, in line with our agreed vision, is adding value and helping to create asocial security system that is improving outcomes for the people of Scotland. In particular, we were pleased that every one of our further recommendations on Child Disability Payment draft regulations were accepted. This should result in tangible improvements for disabled children and their parents and carers.

In undertaking its scrutiny, SCoSS has not just made recommendations on the wording of draft regulations or on direct policy considerations, but has also considered the bigger picture. This reflects the fact that we are obliged to scrutinise draft regulations against the principles in the Act and these span the whole policy cycle from policy design through to continuous improvement. For example, we have consistently called on the Scottish Government to ensure that long-term policy success is monitored and assessed, and to provide as much clarity as possible for those receiving or providing advice on benefits. We have also highlighted to Scottish Government officials that we will continue to look for consistency and simplicity across benefits, where possible, as this should help to make the system easier to navigate. For example, we have noted some inconsistencies in the way that residency requirements are dealt with in draft regulations. We are mindful of the potential for complexity that exists in the social security area. This may easily be exacerbated should avoidable inconsistencies be introduced in the early days of establishing the devolved social security system.

The Board has also worked closely with the Social Security Committee, to inform its scrutiny. For example, two SCoSS members gave evidence on our report on draft Winter Heating Regulations. Further, the SCoSS Chair attended an informal business planning meeting held by the Committee to explain how SCoSS could potentially add value to its work.

Looking ahead, we will continue to work with other bodies that have a formal role in the social security system to ensure that our scrutiny is as informed as possible. For example, we will consider with SSAC the various interfaces between devolved and reserved benefits, which will be of particular importance when we formally scrutinise draft regulations on adult disability payment.

SCoSS is also taking steps to ensure that the commissioners have the skills and knowledge they need to ensure their continuous improvement. Commissioners have completed two surveys that will result in the creation of a development and training template, and the development of a programme of briefings. We will also ensure that our work takes accounts of the recommendations made by Audit Scotland on last year's annual report and accounts.

2.5 Risks facing SCoSS

SCoSS noted in last year's annual report and accounts the various inherent risks facing what was, at that point, a body in its first year of operation. In summary, SCoSS had to quickly establish itself as a credible and influential body that would clearly add value, within a devolved social security system that was new and still developing, high profile and spending billions of pounds of public money.

More specifically, the SCoSS Board has continued to review its risk register on a quarterly basis, allowing members to consider risks and how they could be mitigated in a systematic and strategic manner.

The Board has agreed that some risks have their wording updated, that risks have increased or decreased and that a new category of inherent risks should be created.

When a risk update is to be presented at a Board meeting, Secretariat undertake the first review of the risk register, considering where any risks scores have increased or decreased, how any mitigating actions have progressed or whether any new actions are required and whether there are any new risks. Risk scores are based on impact and likelihood and each of these rises in increments of five up to twenty five. Multiplying the impact and likelihood scores creates the overall risk score and Secretariat assign these with a red, amber, green colour depending on the risk score. Any mitigating actions are also assigned to groups or individuals and timelines for actions to be completed are noted and updated.

A dashboard at the start of the risk update comprises of any 'red' risks, risks where there score has increased or decreased and any new risks. The Chair reviews this paper and their comments are incorporated into the update before it is presented to the Board where the Members have the opportunity to provide feedback.

This risk process was created by a Board Member and a member of Secretariat staff who both had risk experience. While not based on any particular guidance, the Board consider that this risk process is proportionate for a body the size of SCoSS.

SCoSS also moved quickly to react to the unexpected, and potentially substantial, risks posed by the Covid pandemic to its ongoing operation and work plan which were that (i) SCoSS was less able to plan work due to the disruption to the legislative timetable, (ii) that capacity to produce a 'section 22 report' could be affected and (iii) that Scottish Government would not be able to provide information to SCoSS due to disruption from Covid. All of these risks had the potential to severely disrupt SCoSS achieving the objective of producing reports. In the late summer of 2020, the risk of (iv) lack of capacity in the Secretariat team also increased as one of the team left on a high priority secondment to a team directly involved with coordinating the governments Covid efforts.

Risks (ii) and (iii) remained unchanged over the reporting year however the risk of (iv) lack of capacity within the Secretariat team increased in March 2021 due to two of the three staff moving to other posts in Scottish Government. The most significant risk SCoSS faced over the reporting year was (i) that SCoSS was less able to plan work however by December 2020 this risk had reduced significantly due to our interim plan being published and a statement from the Cabinet Secretary in the Parliament which provided some clarity on legislative timelines.

Members discussed the Coronavirus (Scotland) Act and its potential implications for SCoSS, and considered each item within SCoSS's existing work plan, with a view to considering which should be prioritised and which could be postponed or done differently. This was in addition to the potential short term tasks Members offered to the Cabinet Secretary and Social Security Scotland: to provide scrutiny or supplementary reports, to report on Charter commitments being met during the Covid pandemic or to identify learning that could be drawn upon to make the system more flexible and robust for the longer term. Members also considered how SCoSS's working practices may be affected by Covid.

At the end of the reporting period, we entered a period of some potential instability with regard to turnover of secretariat staff, a new Deputy Director coming into post and, with a forthcoming election, possible changes in key Government and Parliamentary stakeholders. It will be necessary to ensure any arising risks are effectively managed.

A full review of SCoSS's arrangements for corporate governance and risk management was not undertaken in 2020-21 as some of the corporate governance documents were created in that time. Details of review dates for corporate governance documents are however included in a Work Plan paper that comes to each Board meeting. As the risk management processes were still bedding in during the review period this has not been subject to full review however the process and data presented to the Board has been refined and honed over the reporting period which both the Board and Secretariat have contributed to. It is anticipated that once the Secretariat team are at increased numbers then a full review can be undertaken.

2.6 Finance report

SCoSS was delegated a budget of £0.34m by Ann McVie as the Accountable Officer, as per advice of the Sponsor Team. This was based on SCoSS's forecasted spending requirements that were projected and reviewed at the beginning of the year. At year end,

SCoSS had spent £0.17m, a £0.17m underspend against budget. This underspend was due to:

• not requiring the majority of non-staff costs (approx. £0.08m) initially anticipated including costs for focus groups, communications, venue hire and travel and subsistence due, at least in part, to Covid;
• changes to staffing requirements (approx. £0.06m);
• delays in the development of the website (£0.03m).

This underspend was "re-absorbed" into the overall Scottish Government spend at year end. For a full breakdown of costs spent by SCoSS in 2020-21, please refer to Section 5 - Financial Accounts.

Underspend amounts presented to the Board during the reporting period differed to the final underspend due to uncertainty throughout the year from the impact of Covid and the delay to projects such as the website.

The breakdown of budget amounts presented to the Board also changed during the reporting year as Secretariat refined and streamlined this process.

2.7 Projects

SCoSS has, via Scottish Government procurement, secured a supplier to design and build a website. SCoSS has a temporary webpage on the Scottish Government's website however the new website will give SCoSS complete control over content and design.

Secretariat have been working with the supplier since early February 2021 to create the new website however the reduced Secretariat capacity has effected a pause to the project. Additional Secretariat staff are being secured to help progress the website and it is expected to be completed in the autumn of 2021.

Ian Davidson, SCoSS Accountable Officer