Scottish Commission on Social Security: interim report

Section One: Scoss's Role

What is SCoSS?

SCoSS is the Scottish Commission on Social Security, an independent body that provides expert scrutiny of the Scottish social security system. It was created by the Social Security (Scotland) Act 2018, which is called 'the Act' throughout this report.^[1] SCoSS is separate from the Scottish Government and the Scottish Parliament but has strong relationships with both.

There are currently four members of SCoSS, although there can be a maximum of five members.

Sally Witcher, SCoSS Chair and Chief Executive of Inclusion Scotland;
Mark Simpson, SCoSS member and lecturer in law at Ulster University;
Judith Paterson, SCoSS member and Head of Advice and Rights at Child Poverty Action Group in Scotland;
Sharon McIntyre, SCoSS member and Operations Director at Changeworks. Sharon is talking to a parent at SCoSS's event on the Scottish Child Payment;

SCoSS's reports are made public, so that anyone can read them.

What does SCoSS do?

SCoSS has three main roles as set out in the Act. These are explained in turn below.

1. Scrutinising draft regulations

One of SCoSS's roles is to scrutinise and report on certain draft social security regulations. Draft regulations are part of the process for making law:

• A Bill is introduced in the Scottish Parliament. A Bill is a draft law that is debated and can be changed. Once this has happened, the final version becomes an Act of the Scottish Parliament. This means that it becomes law.
• The Social Security (Scotland) Act 2018 sets out different types of social security assistance to be provided by the Scottish Government, for example, for some carers and some disabled people. The detail of this assistance is filled in later by regulations, which can cover very important details like who will get the assistance and how much they will get.
• SCoSS must be consulted by the Scottish Government on most regulations about social security assistance made under the Act. This is because the Scottish Parliament has agreed that the subject matter of these regulations is so important that a more detailed level of scrutiny is required. The Scottish Government provides SCoSS with draft regulations for comment.
• This is a very simplified summary of the legislative process. Further information is available on the Scottish Parliament's website^[2].

How are social security regulations developed?

• Sometimes the Scottish Government will consult to inform the preparation of its draft regulations. The Scottish Parliament's Social Security Committee may also decide to discuss or consult on related policy issues.
• The Cabinet Secretary formally refers draft regulations to SCoSS. SCoSS must then scrutinise the draft regulations and produce a public report with recommendations for changes.

• SCoSS usually consults on draft regulations with stakeholders, including people with lived experience of the social security system. This helps SCoSS to understand how the draft regulations may affect people who will receive assistance.
• The Scottish Government has to respond to SCoSS's reports and may change the draft regulations to reflect SCoSS's recommendations. If it doesn't accept SCoSS's recommendations it has to say why.
• The Scottish Government then lays the draft regulations in the Scottish Parliament, along with its response to SCoSS's scrutiny report recommendations.
• Before they can become law, draft regulations have to be approved by the Scottish Parliament. As part of this process, the Scottish Parliament's Social Security Committee will consider the draft regulations and make a recommendation to the Scottish Parliament whether to approve. This will involve the Committee, a group of MSPs from different political parties, taking evidence from the Cabinet Secretary and anyone else it chooses. They may invite SCoSS to give evidence about its report.
• If the Scottish Parliament approves the regulations, they will become law.

How does SCoSS scrutinise draft regulations?

When SCoSS scrutinises draft regulations, it has to consider whether they reflect the social security principles in the Act. These are:

(a) social security is an investment in the people of Scotland,

(b) social security is itself a human right and essential to the realisation of other human rights,

(c) the delivery of social security is a public service,

(d) respect for the dignity of individuals is to be at the heart of the Scottish social security system,

(e) the Scottish social security system is to contribute to reducing poverty in Scotland,

(f) the Scottish social security system is to be designed with the people of Scotland on the basis of evidence,

(g) opportunities are to be sought to continuously improve the Scottish social security system in ways which
(i) put the needs of those who require assistance first, and
(ii) advance equality and non-discrimination,

(h) the Scottish social security system is to be efficient and deliver value for money.

SCoSS also has to consider if the draft regulations reflect relevant human rights conventions.

SCoSS will also look at different types of evidence to inform its scrutiny. In addition to input from SCoSS stakeholder consultation, particularly from people with lived experience, this may include the results of any Scottish Government consultation and impact assessments prepared by the Scottish Government. Impact assessments describe the implications of the draft regulations for different groups of people. Having to describe the implications means it's more likely anything that could unintentionally disadvantage these groups will be identified and prevented.

SCoSS will make recommendations for change if it considers that the draft regulations don't fully reflect any of the social security principles or human rights conventions. It might also point out anything that looks unclear or inconsistent with other regulations, or the Act, or any unintended consequences. It may also ask the Scottish Government for more information.

2. Reporting on the Social Security Charter

A second role for SCoSS under the Act is to report to the Scottish Government and the Scottish Parliament on whether the expectations in the Social Security Charter are being met. The Scottish Government and Social Security Scotland published the Social Security Charter in January 2019^[3]. It is called 'Our Charter'.^[4]

What is the Social Security Charter?

• The Charter explains what the social security principles mean in practice. It sets out what people are entitled to expect from Social Security Scotland^[5], the agency that delivers devolved Scottish social security, and the Scottish Government.
• It was produced with people with lived experience of receiving social security. Organisations that help or represent people who may use the social security system were also involved.
• People with lived experience have also produced the Charter measurement framework^[6]. This document will help people to understand whether the Charter is delivering what it promised.
• The Scottish Government has to report to the Scottish Parliament every year on the performance of the Scottish social security system, including what it has done to meet the expectations in the Charter. This means they will be held publicly accountable for this.

What is SCoSS's role with the Charter?

From time to time, SCoSS must report to Scottish Ministers and the Scottish Parliament on the Charter.

SCoSS must consider whether some or all of the expectations in the Charter are actually being met. If SCoSS does not believe that expectations are being met, it will make recommendations for improvement. It will be up to the Scottish Government to decide how to respond to SCoSS's reports about the Charter.

SCoSS must consider reporting on the Charter if it receives evidence that expectations are frequently not being met.

Whenever SCoSS reports on the Charter, it may consider human rights conventions in doing so. It may also speak to people and groups with an interest in the Charter and the social security system.

Scottish Government Charter reviews

The Scottish Government must review the Charter within five years of its publication and every five years after that. When it carries out a review, the Scottish Government must consult SCoSS and any other appropriate people. This must include people who have received social security assistance.

When it has completed a review of the Charter, the Scottish Government must decide whether or not it should be changed. It has to explain any changes to the Charter and these have to be agreed by the Scottish Parliament.

3. Requests from Scottish Parliament and Scottish Government

A third role for SCoSS under the Act is to report 'on any matter relevant to social security' when asked by either the Scottish Government or the Scottish Parliament.

The Act does not say what is meant by 'any matter relevant to social security'. SCoSS will therefore want to make sure that any request it receives from the Scottish Parliament or the Scottish Government is as clear as possible. SCoSS will also want to make sure it has enough time, and the right skills and knowledge, to respond.

SCoSS may consider human rights conventions when it is asked to produce a report by the Scottish Parliament or Scottish Government.

Where does SCoSS fit?

Various people and organisations are involved in developing and delivering Scottish social security:

The Scottish Government devises and implements policies in devolved policy areas, including for certain social security benefits.

The Cabinet Secretary for Social Security is responsible for devolved welfare policy and social security.

The Social Security Directorate within the Scottish Government develops policies and processes that enable the delivery of assistance.

The Scottish Parliament passes laws and holds the Scottish Government to account, including in relation to social security. Much of the detailed scrutiny of social security within the Scottish Parliament is carried out by the Social Security Committee.

Social Security Scotland is the agency that delivers social security assistance in a way that is consistent with Our Charter. It makes decisions on who should receive assistance in accordance with the law and related guidance.

The Scottish Commission on Social Security (SCoSS) is an independent body that provides expert scrutiny of the Scottish social security system.

External organisations and groups of different kinds, such as the Disability and Carers Benefits Expert Advisory Group (DACBEAG), and people who receive social security, also contribute. For example, by responding to Scottish Government consultations on devising new benefits, or by taking part in Scottish Parliament inquiries into social security.