Social Security Experience Panels - re-determinations and appeals, fraud and special measures for COVID-19: main report

Executive summary

Introduction

The Scottish Government set up the Scotland's social security system: enhanced administration and compensation recovery consultation to gather views on a number of proposed changes aimed at improving the experience of clients and the efficiency of the system. The proposed changes involve a range of topics including re-determinations, determinations after an appeal is lodged, alternatives to prosecution for low-value fraud, and special measures for late re-determinations, appeals and applications. This research explores the views of Experience Panels members on these topics.

The research with Social Security Experience Panels members took place between October and November of 2022. In total, 61 research participants took part in 5 focus groups and 35 individual interviews.

This research project included a second stage with Social Security Scotland's Client Panels members to explore their views on late applications. A survey ran between December 2022 and January 2023. In total, 340 Client Panels members responded to the survey.

The sections below provide an overview of the main themes and findings from this research.

Re-determinations and appeals

The right to withdraw a re-determination

Research participants were asked if a client should be able to withdraw a re-determination request before Social Security Scotland has made a re-determination decision. Mixed views were highlighted by participants.

A few participants who agreed noted the following possible reasons: a lack of advice or being unsure of a positive outcome; receiving advice which suggested the re-determination would have a negative outcome; the fear that an award may be withdrawn entirely or the level of award reduced.

Most participants highlighted that clients may want to withdraw a re-determination request as the process is felt to be overwhelming, stressful, difficult and/or intimidating. This was often mentioned as an issue for people with mental health conditions.

Some participants expressed a concern that people may withdraw a re-determination request if placed under pressure by the Department for Work and Pensions (DWP) or Social Security Scotland. This was based on a few describing previous experiences in which DWP staff pressured clients to withdraw their appeal.

Other suggestions included the provision of clear guidance on the process of withdrawing. A few participants noted that additional support and advice should be provided to fully explain what a withdrawal entails.

Making a new determination after an appeal is lodged

Research participants were asked their views on if a client's appeal process should be stopped if it is discovered that a mistake has been made by Social Security Scotland and a new determination can be offered, removing the need for an appeal to continue.

Positive impacts of the proposal

Some participants agreed with the proposal, stating that it would save time and money for the clients, the government, tribunals and advocacy organisations. Others noted that it would avoid the high levels of stress, worry and anxiety for clients that often accompany an appeal. Some also stated that being informed a mistake had been made by Social Security Scotland would encourage positive feelings of trust toward the benefits system and improve their opinion of it.

However, a few participants noted that they would be unsure of withdrawing an appeal at this stage, highlighting previous negative experiences with the DWP which have left them suspicious of the benefits system.

Many participants noted that there might be different reasons why a client may want to continue with the appeals process. These included having the opportunity to highlight mistakes made in their original determinations, or if they disagreed with the duration, timescale or other aspects of the award given.

Being offered the highest level of the award and the right of continuing an appeal

Most participants agreed that a new award decision should only be offered if it would give the client everything that they could get from the tribunal (i.e. top level awards for both elements of their benefits). However, participants expressed mixed views on some elements of the proposal.

Some said that the duration of the award offered could influence a client's decision on whether to continue with the appeals process or not. A few stated that the tribunal should only be stopped if top-level awards are being granted for an indefinite period of time due to lifelong health conditions that will not improve.

Many participants stated that the choice to appeal should remain after a client receives information about their new award. A few said that regardless of the award being granted the decision of whether to continue or stop an appeal should remain with the client.

Comprehensive information, clear communication and guidance

Many participants highlighted that the client should be provided with comprehensive and clear information about the new award, appeals process and future choices they have. Many felt that having more information would improve the transparency of the decision-making process.

Many participants highlighted the importance of using clear, two-way communication when explaining how decisions have been reached and for providing information about the award and clients' options for the process going forward from that point. Some participants also wanted to see comprehensive, clearly worded guidance, and for this to be available in a range of formats to meet the different communication needs of clients.

The new determination and giving consent

Participants were asked if they agreed or disagreed that clients should be asked for their consent before a new determination is made. Mixed views were given.

Many participants who agreed that consent should be part of the process felt that this was an appropriate legal element of the process. A few felt that consent would be required if the new award was time limited. Others noted that consent should be a requirement as clients may want to continue with their appeal regardless.

Participants felt that it should be possible to give consent through a variety of communication channels. A few highlighted that it would be important for the consent to be formally recorded.

Some participants who did not agree that clients should be asked for their consent felt that this would be an unnecessary step so long as the highest possible award was being given, and the reasons and process going forward were clearly explained.

The right to challenge the new determination

Most participants stated that the choice to challenge a decision made by Social Security Scotland should be the right of the client. A few participants highlighted that they felt providing the choice to challenge a new determination was a legal obligation for Social Security Scotland.

Alternatives to prosecution for low-value fraud

Participants were asked for their views on what they understand fraud to be and the definition of fraud used by Social Security Scotland. They were also asked what barriers they thought may exist that could prevent someone from notifying of a change of circumstances, how to reduce or remove these barriers, and what they believed could constitute a reasonable excuse for failing to inform of a change in circumstances. Finally, participants were also asked for their opinion on alternatives to prosecution for cases of low-value fraud.

Understanding fraud

The majority of participants described fraud as gaining something by deception, and felt it was similar to theft. Most participants emphasised that they felt fraud had to be a deliberate act.

Participants were also asked for their views on the following definition of fraud used by Social Security Scotland:

• Obtaining assistance by deceit.
• Failing to notify a change of circumstances.
• Causing a failure to notify a change of circumstances.

Some participants felt that the definition offered by Social Security Scotland was clear and aligned with their understanding of fraud. However, participants questioned the definition for a variety of reasons. Differing understandings of the notion of "intent" was a key theme amongst those querying or disagreeing with the definition, and most participants felt that fraud had to be an intentional act.

Most participants perceived a grey area between what counts or would be recognised as a "genuine error", and what Social Security Scotland considered to be intentional fraud.

This was particularly the case around "failing to notify of a change in circumstances." Some participants were unclear what would constitute a change in circumstances, especially for those with fluctuating conditions. Others were concerned that a failure to notify of a change of circumstances would be defined as a fraudulent act, even if this was accidental.

Barriers to notifying of a change of circumstances

Participants noted a variety of barriers which could prevent someone from notifying of a change in circumstances. The most commonly suggested ones related to a significant change in life circumstances, both positive and negative.

Several participants highlighted that the complexity of forms and the benefits system in general can be a barrier to understanding what a person is required to do when their circumstances change. Some participants also mentioned a fear of the consequences to notifying of a change in circumstances, where it could lead to a drop in award level or a total loss of support.

Participants suggested a variety of ways to reduce barriers to notifying of a change in circumstances. These included providing multiple means of contacting Social Security Scotland, providing additional support to clients, and ensuring that there is clear messaging and consistent deadlines applied to requirements around notifying of a change in circumstances.

The most common reasons suggested by participants as a reasonable excuse for not notifying of a change in circumstances related to the impact of significant life events or crises, such as bereavement, breakdown of relationships, traumatic events, and medical reasons including long-term illness and forgetfulness or confusion caused by a condition.

Alternatives to prosecution

Participants were asked for their opinion on if Social Security Scotland should have an alternative measure to prosecution available for cases of fraud where only small amounts of money were involved. Most participants agreed that there should be an alternative available, although with variations in responses. The most common reason was to avoid stress for the client involved and to save resources such as money and time through avoiding lengthy court processes.

Most participants did want to see some nuance around how alternatives to prosecution were used, suggesting that this would be more suitable for cases of low-value and unintentional fraud. A number of suggestions were offered by participants for what alternatives to prosecution could be used, including unpaid work or voluntary service and small fines.

Not all participants agreed that Social Security Scotland should have an alternative to prosecution available. Most participants agreed that where a clear case of intentional fraud had been identified this should lead to prosecution.

Special measures for late re-determinations, appeals and applications

Views on measures introduced during the COVID-19 pandemic for late re-determinations and appeals

Special measures were implemented during the pandemic which allowed clients to submit a re-determination or appeal request beyond one year of the determination or re-determination if the reason for the lateness was due to coronavirus (COVID-19). Participants were asked if they agreed that it is the right time to stop these measures. Mixed views were provided.

Many participants agreed that it was the right time to stop these COVID-19 measures, as they felt that there was no longer as high a risk from the pandemic, or that the pandemic was effectively over.

Others noted that although the pandemic is continuing it has become normalised and is no longer an exceptional event. Some participants also noted that the public are now better protected through vaccinations.

Some participants disagreed that the measures should now be stopped, citing the continuing health risks of the virus and the fact that many people with disabilities have conditions which make them more vulnerable to the effects of the virus.

Special measures for late applications

Special measures are also in place for late benefit applications if the delay is due to a reason related to COVID-19. Research participants were asked if they agreed or disagreed that applications for assistance to Social Security Scotland should no longer be able to be treated as valid where they are made late and the reason for that delay is related to COVID-19. The reasons given for and against this proposal were similar to those expressed for the special measures relating to re-determinations and appeals, outlined above.

Participants were then asked for their views on whether the ability to apply late with a 'good reason' should be extended to reasons other than COVID-19. Most participants agreed with this proposal. Some participants suggested a client or a member of their family being ill (regardless of the nature of the illness) should be a good reason for a late application, including for mental health reasons. Other participants suggested that gathering supporting information, receiving advice and support, or coping with unexpected life events could also be good reasons for a late application.

Reasons for late applications: follow-up survey

A follow-up survey was carried out with Client Panels members to explore their views on reasons for late applications. The survey asked respondents whether they thought late applications should ever be accepted by Social Security Scotland for a range of benefits (detailed later in this report). Around half of respondents (48 per cent) said 'yes' and just over a quarter (28 per cent) said 'maybe'.

The survey asked respondents about certain situations applicants might experience and their thoughts on whether these situations should allow for Social Security Scotland accepting late benefit applications.

An applicant being seriously ill to the extent where their normal life and ability to carry out tasks is considerably impacted

The majority of survey respondents (84 per cent) felt that this situation would constitute a good reason for allowing late benefit applications. Respondents felt that this was a good reason as it was something outside of the applicant's control, and that applicants would (or should) be focussing on their health and feeling better. For those who disagreed that this was a good reason, it was suggested that those who are ill could get support from others, or that this should only apply in cases of serious illness.

A close family member of an applicant being seriously ill

The majority of respondents were supportive of Social Security Scotland accepting late applications in this scenario, with around two thirds (65 per cent) answering 'yes'. The most common reason given in this scenario was that applicants would be too preoccupied with other tasks and would be focussing on the health of the family member in question. For those who disagreed, it was suggested that this should only apply where it is a close family member, where the illness is serious, or where the applicant is responsible for providing care.

An applicant having a severe case of COVID-19 or long COVID

A little over two thirds (69 per cent) of respondents felt that Social Security Scotland should accept late applications for applicants affected by severe COVID-19 or long COVID, with the most common reason being the negative impact on an individual's physical and mental health. For those who disagreed with this being a good reason for a late application, several mentioned that this would need to be assessed on a case-by-case basis or that this could be falsely used as a reason.

An applicant having to wait for supporting information to be supplied by someone else to aid their application

The majority (82 per cent) of survey respondents answered 'yes' when asked if late benefit applications should be accepted in this scenario. The most common reason given was that it is a circumstance largely outside of the applicant's control and services may be under strain due to COVID-19 and other factors. However, those who disagreed felt that responsibility to gather supporting information lay solely with the applicant and failure to do this on time should not mean that a late application should be accepted.

An applicant waiting for support from professionals outside of Social Security Scotland to help with their application (such as advocates or the Citizens Advice Bureau (CAB))

A little over two thirds (69 per cent) of respondents believed that late applications should be accepted in this scenario. For those who agreed the most common reason given was that support services which people may be using for support during applications are stretched, causing delays in receiving appropriate support. For those who disagreed, the most common reason was that applicants should have to supply proof they had sought support in a timely manner.

An applicant experiencing an ongoing or unexpected serious life event that is very difficult to cope with

The majority of respondents (83 per cent) felt that this situation should constitute a good reason for Social Security Scotland accepting late applications. For those who agreed with this, the most common reason was that applicants would likely be preoccupied with this serious event and its repercussions across different aspects of their life. For the few who disagreed, it was suggested that there would need to be proof of the serious event and its impact on an applicant.

Other circumstances where Social Security Scotland should accept late applications

Survey respondents were asked if there were other scenarios that Social Security Scotland should consider for accepting late benefit applications. Just over a third (37 per cent) of survey respondents felt that there were additional circumstances which should warrant acceptance of a late benefit application. Just under a third (31 per cent) answered 'no' and a fifth (20 per cent) answered 'maybe'. One of the most common reasons suggested was the death of a close family member. Others included applicants being unaware of eligibility, not having sufficient information to apply, and being subject to financial or domestic abuse.

Cross-cutting reasons

When survey respondents were asked to give their reasoning for their question answers, some themes arose repeatedly throughout the survey responses. This was true for reasons in favour of allowing late applications and also where respondents were against or had mixed views about late applications.

In favour of allowing late applications

Many respondents felt that to live by its values of dignity, fairness and respect, Social Security Scotland should accept benefit applications that are late. Others suggested that there should not be any deadlines for applications so that clients can access support whenever they need.

Against or mixed views about allowing late applications

Across most questions in the survey many people gave reasons that were mixed or against accepting late benefit applications that related to the logistics of making a benefit application/s. These included the deadlines already being long enough, applications being easy to submit and the ready availability of support.

Timeframes for lateness of applications

Respondents were asked to choose a specific timeframe for how long they thought benefit applications could be submitted after the benefit deadlines listed. The most common response was '1 – 3 months', which a third (33 per cent) of respondents answered. This was followed by 'up to 1 month', which just over quarter (26 per cent) of respondents answered. The third most common time frame was '4 – 6 months', answered by 17 per cent of respondents. The least common responses were '7 – 9 months' (2 per cent of respondents) and 'applications should not be accepted when at all late' (4 per cent of respondents).