Social Security (Amendment) (Scotland) Bill: child rights and wellbeing impact assessment

CRWIA Stage 1 – Screening

Brief Summary

The Social Security (Scotland) Act 2018^[1] (“the 2018 Act”) set out the overarching legislative framework for the administration of social security in Scotland, took powers for Scottish Ministers to deliver social security assistance and made provisions for operational functions such as managing overpayments, error and appeals.

The Scottish Parliament subsequently passed the Social Security Administration and Tribunal Membership (Scotland) Act 2020^[2], which included provision for appointees, provisions for suspension of entitlement, and extended the provisions for offences in the 2018 Act to forms of top-up assistance under section 79 of the 2018 Act.

A CRWIA was published for the 2020^[3] Act.

This Bill introduces provisions aimed at effecting the continuous improvement of the social security system across a range of topics, in line with the Scottish social security principles laid out in Part 1 of the 2018 Act.^[4] These core principles, endorsed unanimously by the Scottish Parliament, deliberately correspond to some of the fundamental aspects of the right to social security, as set out in key human rights instruments such as the International Covenant on Economic, Social and Cultural Rights,^[5] the Universal Declaration of Human Rights,^[6] and the European Social Charter.^[7]

In particular, the principles which connect most closely to the provisions included within the Bill state that –

“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”

and

“the Scottish social security system is to be efficient and deliver value for money”

The majority of provisions included within the Bill are designed to create efficiencies and enhance the administration of the Scottish social security system, with a focus on measures to improve client experience and to deliver value for money.

The Scottish Government believes that social security is a human right^[8], as set out in the 2018 Act, and a shared investment to help tackle poverty and build a fairer, more equal society. The National Performance Framework^[9] was created to explain the Scottish Government’s aims for Scotland, the values that guide our approach and the national outcomes it is committed to achieving.

The majority of the proposals in the Bill are cross-cutting in nature and promote a person-centred, human rights-based approach to social security. The policy intention is to create efficiencies, remove barriers and empower people interacting with Social Security Scotland.

The Bill will contribute positively to advance the national outcomes of:

• Communities: We live in communities that are inclusive, empowered, resilient and safe.
• Human Rights: We respect, protect and fulfil human rights and live free from discrimination.
• Poverty: We tackle poverty by sharing opportunities, wealth and power more equally.

The Scottish Government published a strategy document titled “Equality, opportunity, community: New leadership – A fresh start” on 18 April 2023 which set out the First Minister’s vision for Scotland and the outcomes the government aims to achieve by 2026.^[10]

The Bill will contribute positively to two of the three indicators set out: Equality and Community. Firstly, Equality, through tackling poverty. Social Security Scotland makes payments which contribute to reducing inequality and which help protect people from the harms which flow from living in poverty.

The second objective, Community, will be advanced through this Bill by prioritising public services in a way which is person-centred, with a focus on tackling inequalities and ensuring that people are empowered to access and challenge their social security entitlement.

Further information about the background and the policy intention of the Bill is set out in the Policy Memorandum which accompanies the Bill. An overview of the provisions included in the Bill and their specific policy aims are set out below.

The scope of this CRWIA is focused on the possible impacts on children and young people that may occur from implementing the provisions in the Bill. If passed, the Scottish Government intends to make regulations and to provide statutory guidance following consultation with stakeholders, to support the implementation of the Bill. This and further ongoing research and stakeholder engagement will contribute to further CRWIAs for each set of substantive regulations.

Taking a regulation-making power for childhood assistance

New enabling powers are provided within the Bill, allowing the Scottish Ministers to make regulations for childhood assistance, which will help towards meeting some of the costs associated with having a child in the family. Scottish Ministers intend to use the new powers for childhood assistance in due course as a new legislative footing for Scottish Child Payment (SCP) to allow better alignment of Social Security Scotland benefits.

SCP is currently delivered under s79 of the 2018 Act^[11] as a ‘top-up’ where an individual is receiving a qualifying UK Government benefit.^[12] Placing the payment on a new legislative footing will offer the opportunity for greater alignment across the five family payments (including the Best Start Grants and Best Start Foods) and will afford flexibility in the way the payment is delivered in the future.

Financial support for people with care experience

A provision will be included in the Bill allowing Scottish Ministers to create, by way of regulations, financial support for people with care experience. The current intention is that these powers will be used initially for a payment called the Care Leaver Payment (CLP).

The CLP will fulfil the commitment made in the Promise Implementation Plan published in March 2022 to ‘provide some additional financial security for young people with care experience and will help reduce some of the financial barriers that young people face whilst moving on from care and into adulthood and more independent living’.

Amendments to Coronavirus (COVID-19) measures introduced in 2020

In 2020, due to the coronavirus (COVID-19) pandemic, sections 52A and 52B were amended into the 2018 Act by the Coronavirus (Scotland) Act 2020.

Section 52A means requests for re-determinations must be considered valid beyond the maximum period of one year prescribed by the 2018 Act, where the reason for delay was related to COVID-19. Section 52A also allows for appeals to be brought beyond the maximum prescribed period of one year, where the Tribunal gives permission on the basis of being satisfied that the reason for the delay was related to COVID-19. Section 52B allows a late application to be treated as being made within the prescribed period for a given benefit under Chapter 2 of the 2018 Act, where the reason for delay was related to COVID-19.

The provisions in the Bill will give Social Security Scotland discretion to accept late requests for re-determination beyond the one-year prescribed period on the basis of ‘exceptional circumstances’, rather than only COVID-19. The provisions in the Bill will repeal section 52A of the 2018 Act and allow appeals to be brought, with the permission of the Tribunal, beyond the one-year prescribed period on the basis of ‘exceptional circumstances’, rather than only COVID-19. Provisions in the Bill will remove section 52B from the 2018 Act and revert application periods to existing pre-COVID deadlines.

Withdrawing a request for re-determination

Under the 2018 Act, where a determination of entitlement to assistance is made, an individual has a right to a re-determination. If a client asks for a re-determination, the Scottish Ministers are under a statutory duty to make a new determination. A client cannot subsequently withdraw their request for re-determination, even if their circumstances have changed since making their request, or if they have otherwise changed their mind.

The Bill includes provision enabling clients to withdraw a re-determination request if they no longer wish to challenge the decision. This policy builds on the person-centred, rights-based approach already adopted for challenge rights in line with the Scottish social security principles and the Social Security Charter (‘the Charter’).^[13]

Completing re-determinations beyond the period allowed

Where a re-determination is not completed by the Scottish Ministers in the timescales set out in the relevant regulations, the re-determination becomes out-of-time and the client is notified that they have a right to appeal to the First-tier Tribunal (Social Security Chamber) without waiting for the re-determination to be made. The Scottish Ministers are, at that point, no longer under a duty to make the re-determination. However, in practice, they continue to consider the re-determination request.

Provisions are included in the Bill so that the Scottish Ministers remain under the duty to make the re-determination beyond the period allowed, unless the client opts to exercise their right to appeal. This will offer legal clarity in terms of what happens in practice when a re-determination runs late.

Making a new determination of entitlement whilst there is an ongoing appeal

Under the 2018 Act, Scottish Ministers cannot make a new determination after a valid appeal has been brought, even if an error has been identified, or new evidence received, which shows that a client has been underpaid, or not received an award that they were entitled to. The appeal must continue unless it is withdrawn by the client.

In instances where the Scottish Ministers recognise that an individual should have received a higher, or more advantageous, award, the provisions in the Bill allow a new determination to be made after an appeal has been lodged and the appeal to stop as a result. The new determination can only be made if the client agreed, and will come with challenge rights.

Appeals to First-tier Tribunal against process decisions

The 2018 Act provides at section 61 that individuals can appeal to the First-tier Tribunal for Scotland against certain decisions made by the Scottish Ministers on the process of applying for benefits, or the process of challenging determinations.

The provisions in the Bill set out the powers of the Tribunal to uphold or set aside decisions in process appeals, and the effect of a Tribunal decision in a process appeal. The Bill also sets out further circumstances in which a process appeal may be raised, to include the new types of process introduced by the Bill.

Overpayment liability and challenge rights

Under the 2018 Act, a client has a statutory liability to repay any overpayment made in error, except where they did not cause or contribute to that error, and if it was the sort of error a person could not reasonably be expected to have noticed.

The provisions in the Bill set out that liability extends to clients who have a representative acting on their behalf, except where the representative uses the assistance for a purpose which is a breach of their duties or responsibilities, in which case the representative will be personally liable.

Currently, where Social Security Scotland determines that an overpayment has occurred, it makes a new determination on a client’s entitlement to benefit. Although this new determination will bring re-determination and appeal rights if the client wants to challenge the decision, there is not any formal right to challenge the decision that an individual is liable to repay the overpayment.

The provisions in the Bill also introduce a right to a review (followed by a right to appeal to the First-tier Tribunal for Scotland (Social Security Chamber)) against a finding of liability for an overpayment. The further review and appeal provisions in part 6 of the Tribunals (Scotland) Act 2014 will also be available.

Recognising Appointments made by a Minister of the Crown

Where a person lacks capacity to manage their own financial affairs, the Department for Work and Pensions (DWP) and Scottish Ministers both have provisions that allow them to appoint a person or organisation, known as an appointee, to act on that person’s behalf.

Due to differences in the law and the processes that govern appointments in Scotland and the rest of the United Kingdom, a DWP appointee – which is an appointment made by a Minister of the Crown – cannot automatically be treated as equivalent to an appointee under the Social Security (Scotland) Act 2018.

The Bill will introduce powers for Scottish Ministers to make provision in regulations prescribing circumstances in which a DWP appointee may be treated as though they had been appointed by Scottish Ministers to act on a client’s behalf, pending an assessment by Social Security Scotland.

Liability of appointees

Currently, there is no provision within the 2018 Act with the effect that an appointee will be liable to account to the individual for any mismanagement of the individual’s property (either in relation to children or adults). There are provisions respectively, in terms of the Children (Scotland) Act 1995 and the Adults with Incapacity (Scotland) Act 2000, which make other types of representatives liable to the individual for mismanagement of their property.

The Bill provides that an appointee will be liable to account to the individual for whom they were appointed, for their use of the individual’s funds outwith their authority or power, or after having received intimation of the termination or suspension of their authority or power to intervene. They are to be liable to repay the funds to the account of the individual. No liability will be incurred where the appointee acted reasonably and in good faith in their use of the individual’s funds.

Information for audit of the social security system

Social Security Scotland need to produce effective measurements and estimates of the extent of client error, official error, and fraud as assurance that the social security system is efficient and delivering value for money in line with the Scottish social security principles.^[14]

Currently Scottish Ministers can only request that people provide information for the specific purpose of determining an individual’s entitlement to social security assistance. Provisions in the Bill will give Scottish Ministers powers to require individuals to provide information when reasonably requested to do so, in order to review their entitlement for the purposes of audit. Safeguards will be built in to ensure that where a person has good reason they might be exempted from the process.

Recovering Scottish social security assistance from awards of compensation

A person affected by accident, injury, or disease due to the fault of a third party may be entitled to compensation. Depending on the nature of their accident, injury, or disease they may also be entitled to social security assistance. The Scottish Government believes that a third party’s legal obligation to fully compensate those they have harmed should not be subsidised by Scotland’s social security system.

The provisions in the Bill allow the Scottish Government to recover relevant forms of Scottish assistance from awards of compensation, avoiding the risk of a person being ‘doubly compensated’ for the same incident. The policy on compensation recovery is consistent with the responsibilities in the Scottish Public Finance Manual^[15], and aligns with the Scottish social security principle that the Scottish social security system is to be efficient and deliver value for money.^[16]

Changes to the remit and status of the Scottish Commission on Social Security

The Scottish Commission on Social Security (SCoSS) reviews certain social security policies, by way of consideration of draft regulations, and provides the Government and the Scottish Parliament with scrutiny reports on each piece of legislation it reviews.

The provisions in the Bill expand the types of regulations that SCoSS is able to review, and replace the requirement for SCoSS to prepare accounts for external audit, with a requirement to submit an annual report on their work to Scottish Ministers. The Scottish Ministers will then share this report with the Scottish Parliament.

The Bill also removes the status of SCoSS as a body corporate. SCoSS will continue to be recognised as an advisory non-departmental public body which better reflects how it operates in practice.

Further information

The process of developing the policies contained in the Bill has been ongoing since 2022, with the impacts on children’s rights and wellbeing considered as part of this process.

Which aspects of the relevant proposal currently affects or will affect children and young people up to the age of 18?

The articles of the UNCRC and the child wellbeing indicators under the Children and Young People (Scotland) Act 2014 apply to all children and young people up to the age of 18, including non-citizen and undocumented children and young People.

The Bill contains a number of proposals which intend to effect the continuous improvement of the Scottish social security system and ensure that the system is efficient and delivering value for money. Some provisions of the Bill seek to amend or repeal sections of the 2018 Act, and others seek to create new provisions in that Act.

The Bill will therefore affect children and young people who come into contact with the social security system whether directly or indirectly.

Under the 2018 Act there are two forms of assistance for which a person under 16 might be eligible: Child Disability Payment (CDP) and Child Winter Heating Allowance (CWHA). Child Rights and Wellbeing Impact Assessments have been published for CDP^[17] and CWHA^[18].

Where a child under the age of 16 is eligible for these forms of assistance, an application is made and managed by a responsible adult over the age of 16 on their behalf, most often someone with parental rights and responsibilities.

Where a young person is between the ages of 16 and 18 they can apply for and manage independently all forms of Scottish assistance for which they are eligible, with access to a range additional support measures. These include the right to be accompanied by a supporter, the right to advocacy, the availability of interpreters and accessible communications, third party representatives, accessible locations, and interviews at home ensure people are treated with dignity and respect and fully able to participate in any review.

Specific aspects of the measures in the Bill which may affect children and young people in particular are described below.

Taking a regulation-making power for childhood assistance

Scottish Ministers intend to use the new powers for childhood assistance in due course as a new legislative footing for SCP.

SCP is currently delivered under s79 of the 2018 Act as a ‘top-up’ where an individual is receiving a qualifying UK Government benefit. Placing the payment on a new legislative footing will afford flexibility in the way the payment is delivered in the future and will offer the opportunity for greater alignment of social security assistance. The Bill will not make any specific changes to the payment, but will instead provide a new regulation-making power which will enable future changes.

Any changes made in future would affect children who are intended to benefit from the payment. It should be noted that the Bill itself will not bring any changes, but only enable development of regulations in future. The development of any regulations made under the provisions in the Bill will be accompanied by all necessary impact assessments, including a further CRWIA.

Financial support for people with care experience

The Bill takes a regulation-making power for the Scottish Ministers to establish one or more schemes to provide care experience assistance to those who have experience of the care system. The regulation-making power will enable the Scottish Ministers to establish a scheme to deliver the Care Leaver Payment.

The assistance will provide a one-off payment for young people leaving care, with the intention of helping to reduce some of the financial barriers that young people face in transition to adulthood and more independent living. This payment aims to provide care leavers with additional financial support and will form part of a broader package of support.

Details on the eligibility criteria, processes and delivery model of the payment are still to be determined. This will be developed through engagement and consultation with care experienced people and those with experience of delivering similar support. Further impact assessments will also be undertaken on any scheme established by way of regulations. Details of any assistance will be set out in regulations, which will be accompanied by all necessary impact assessments, including a further CRWIA.

Re-determinations and Appeals provisions

For the purposes of this CRWIA the provisions in the Bill aimed at offering people more flexibility when challenging decisions made by Social Security Scotland will be considered together. This includes the provisions which intend to:

• give Social Security Scotland discretion to accept late requests for re-determinations, and the Tribunal discretion to give permission for appeals to be brought, beyond the one-year prescribed period on the basis of ‘exceptional circumstances’
• allow people to withdraw a request for re-determination
• clarify that the Scottish Ministers remain under the duty to make the re-determination beyond the period allowed, unless the client opts to exercise their right to appeal
• allow a new determination to be made by Scottish Ministers after an appeal has been lodged and the appeal to stop as a result
• set out the powers of the Tribunal to uphold or set aside decisions in process appeals, and the effect of a Tribunal decision in a process appeal.

All aspects of these proposals can directly or indirectly affect children and young people up to the age of the 18 in receipt of devolved social security benefits that come with rights of re-determination and appeal, or whose families are in receipt of the same. This is because these policy proposals involve challenging decisions on all benefits delivered by Social Security Scotland that come with re-determination and appeal rights. Therefore, these proposals could potentially affect families who challenge a benefit decision on both low-income benefits as well as disability benefits, including parents, guardians, kinship carers and thereby directly or indirectly impacting children or young people up to the age of 18.

Overpayment liability and challenge rights

The proposals included in the Bill to clarify that liability extends to clients who have a representative acting on their behalf and to introduce a right to a review (followed by a right to appeal to the First-tier Tribunal for Scotland (Social Security Chamber)) against a finding of liability for an overpayment may directly or indirectly impact upon a child or young person.

Recognising Department for Work and Pensions appointees

Section 85A of the 2018 Act provides that Scottish Ministers may appoint a person to act on behalf of a child (under the age of 16) where there is no person with legal authority who is willing to act. Scottish Ministers have a duty to take account, insofar as practicable, of the views of the child and persons with parental rights and responsibilities, as a safeguard against an appointment disproportionately interfering with the rights of the child and persons with parental rights and responsibilities and / or the risk of the appointment not being in the child’s best’s interests.

This proposal will impact on children under 16 who have an appointee acting on their behalf in relation to their DWP entitlements and who are undergoing a migration to an equivalent Social Security Scotland benefit or making a new application in the Scottish social security system.

Recognising the DWP appointee in the Scottish system for a short period of time ensures that children living in complex family situations are not temporarily prevented from receiving Child Disability Payment, or any other social security assistance that they are entitled to, just because they are being cared for by someone without the parental right, such as an informal kinship carer.

Section 85A of the 2018 Act also provides that Scottish Ministers may appoint a person to act on behalf of an individual (over the age of 16) where they are deemed incapable within the definition of the Adults with Incapacity (Scotland) Act 2000. Scottish Ministers have a duty to take account, insofar as practicable, of the views of the client, and anyone with an interest in their welfare or financial affairs when making the appointment decision, as a safeguard against an appointment disproportionately interfering with the rights of the individual.

This proposal will impact young people aged 16 or 17, who have an appointee acting on their behalf in relation to their DWP entitlements, and are undergoing a migration to an equivalent Social Security Scotland benefit or making a new application in the devolved system.

Recognising the DWP appointee in the Scottish system for a short period of time ensures that no vulnerable young person will experience a sudden stop to their crucial social security entitlements, or a delay in payments being made. The Scottish Government recognises that this proposal will delay the implementation of Social Security Scotland’s safeguarding measures, such as taking into view the account of the client before making an appointment. However, it is important to emphasise that this is a temporary measure, as their views will still be taken into account as soon as reasonably practicable.

The provisions in the Bill take a regulation-making power to prescribe the circumstances in which a DWP appointee may be treated as though they had been appointed by Scottish Ministers to act on a client’s behalf, pending an assessment by Social Security Scotland. Further consideration of the impacts will be considered as secondary legislation is developed.

Information for audit of the social security system

The provisions included in the Bill which give Scottish Ministers powers to require individuals to provide information in order to review their entitlement for the purposes of audit will not in themselves have an impact upon rights of children and young people. The way in which these provisions are implemented in future and the audit processes and the methodology by which those exercises are carried out will affect children and young people.

The Bill also sets out that Scottish Ministers may prescribe in regulations categories of individuals who are not to be requested to provide information.

Any impacts on children and young people will be considered during the development of regulations and the methodology of audit exercises. Further impact assessments considering the impact on children and young people will be undertaken for secondary legislation and prior to operational implementation.

Recovering Scottish social security assistance from awards of compensation

Recovery provisions are a longstanding feature of the UK social security system with the primary legal framework contained in the 1997 Social Security (Recovery of Benefits) Act. The UK recovery scheme is administered by the Compensation Recovery Unit (CRU), a part of the Department for Work and Pensions. Prior to the devolution of certain social security powers to the Scottish Parliament, all relevant amounts of benefits received by people living in Scotland were recovered by the CRU.

The introduction of Adult Disability Payment (ADP) and CDP have resulted in a discrepancy in that equivalent amounts received in relation to accidents, injuries or disease are not recoverable from the compensator.

The policy to recover social security assistance from awards of compensation means that compensators will have an obligation to repay equivalent amounts of social security assistance received by injured parties. To do this, compensators may reduce the amount of compensation due to be paid to those injured parties.

The reduction takes into consideration the amounts that were received to support the individual during the process of reaching settlement. This action effectively stops the injured party from being doubly compensated as a result of the accident, injury or disease. It is proposed that CDP and SCP forms of assistance will be recovered from compensation payments.

Children and young people under the age of 18 in receipt of CDP as a result of an accident, injury or disease caused by a liable third party will be indirectly affected. Children and young people will also be indirectly impacted if their parents, guardians or representatives are in receipt of SCP as a result of an illness or injury caused by a negligent party.

Which groups of children and young people are currently or will be affected by the relevant proposal?

The Bill contains a number of proposals which intend to effect the continuous improvement of the Scottish social security system and ensure that the system is efficient and delivering value for money. Some provisions of the Bill seek to amend or repeal sections of the 2018 Act, and others seek to create new provisions in that Act.

The Bill will therefore affect children and young people who come into contact with the social security system. Many of the proposals are cross-cutting in nature and provisions included in the Bill will have an impact across the social security system on disability assistance and low-income benefits. The proposals could have a direct impact on children and young people up to the age of 18 who receive or apply for social security assistance. They may also have an indirect impact on children and young people up to the age of 18 whose parents, guardians or kinship carers receive or apply for social security assistance.

Is a Stage 2 Children’s Rights and Wellbeing Impact Assessment required?

A CRWIA is required for the Bill, but it has been determined that further assessment is not necessary in relation to the following policies:

• taking a regulation-making power for childhood assistance
• financial support for people with care experience
• information for audit of the social security system
• changes to the remit and status of SCoSS

The Bill contains regulation-making powers for Scottish Ministers to create childhood assistance, and to create one or more schemes to provide financial assistance for people with care experience. The current intention is that the regulation-making power relating to childhood assistance will enable a future change to the legislative footing of SCP while the care experience assistance powers will initially be used to create a scheme to support people leaving care.

There has not yet been a formal consultation on the policy or provisions regarding care experience assistance. The Scottish Government will shortly launch a full public consultation seeking views on the proposed assistance, which will include reference to the powers taken in the Bill in regard to care experience assistance. In addition, further consultation on the detailed rules for the assistance itself will be undertaken before the regulation-making power being taken in the Bill is exercised.

The Bill will not have an immediate impact on children and young people as a result of these regulation-making powers, however it is likely that there will be impacts in future when Scottish Ministers lay regulations. The impact of any such changes will be quantified as part of the regulation-making progress and any particular impact on children and young people considered at that stage.

For the proposal on information for audit of the social security system any impacts on children and young people will arise from the methodology of audit exercises and from secondary legislation. Further impact assessments will be undertaken to consider the impact on children and young people as regulations are developed and prior to operational implementation.

The provisions in the Bill which make changes to the remit and status of SCoSS are not anticipated to affect children and young people. The Bill will allow the Scottish Government to implement recommendations set out by an independent review.

The removal of Body Corporate status follows extensive discussion with the SCoSS Board, SCoSS Advisor and the Public Bodies Support Unit and ensures that governance is proportionate and allows SCoSS to focus on its advisory role. These administrative reforms are not expected to have any direct impact on individuals.