Stage one report on the Social Security (Scotland) Bill: Scottish Government response

Annex A - Overview of Evidence Received on Types of Assistance

The Committee recognises that this is a framework bill. As the bill stands, the detail for each form of assistance, including eligibility criteria, will be brought forward in regulations. Much of the evidence received related to substantive questions on the types of assistance. With the exception of short-term assistance, the Committee does not feel able, at this stage, to make recommendations on the substance of the specific forms of assistance. The evidence received is summarised in an annex to this report and we invite the Scottish Government to reflect on it. There are a number of issues considered in the annex that the Committee anticipates will be returned to at stage 2, for example the definition of terminal illness.

137. The Scottish Government notes the Committee's summary of the evidence received and will reflect on it and continue to discuss matters pertaining to the detail for each form of assistance, including the eligibility criteria. In the meantime, a brief commentary on the Committee's summary of the evidence on each type of assistance is appended below. Note that the black and italicised text in this Annex is not universally quoted from the Committee's report (unlike in the main document above), but also summarises key points or issued raised by said report. The Scottish Government hopes this is helpful in setting out its position ahead of Stage 2.

Carer's assistance

Carer's Allowance rules are a barrier to education and work – and as 75% of recipients are women, this will impact women's participation in the labour market (raised by Engender).

138. The Scottish Government is committed to the principle of social security as a human right. It is working with a range of stakeholders (including its Carer Benefits Advisory Group, Young Carer Grant Working Group and Experience Panels) to understand the equality impacts – including the intersectional impacts – of carers' benefits. The Scottish Government will ensure that these are taken into account in the consideration, development and implementation of future options. All benefit changes will be assessed and there will be an examination of their combined impact on equality across all groups. In doing so, the Scottish Government will seek to learn from stakeholder feedback on the impact assessments conducted in relation to the Bill.

Young carers are looking for something other than financial support.

139. The Young Carer Grant is one part of a new package of support for young carers, which was announced by the First Minister on 20 September. Recipients of the Young Carer Grant will also be eligible for free bus travel from 2020/2021. A young carer element to the Young Scot National Entitlement Card will be co-produced with young carers and rolled out from April 2019, offering entitlements and rewards (such as leisure activities) for young carers aged 11-18.

140. This package of support has been developed within the wider landscape of the Carers (Scotland) Act 2016 which comes into effect in April 2018. Support under the Act will be available to carers of all ages and includes the right to a young carer statement and access to advice and information on respite and income maximization.

There are inconsistencies in the definition of young carer between the Carers Act and Young Carer Grant and other areas of support for young carers (raised by Carers Trust).

141. The Young Carer Grant will be for young carers with significant caring responsibilities aged 16 to 17 years old and those age 18 who are still at school. This aligns with the upper age range definition of a young carer in the Carers (Scotland) Act 2016. It was chosen because this is recognised as a significant transitional time in a young person's life.

142. Young people of this age range are leaving school and making plans for employment, training and education, and those with caring responsibilities often have to deal with additional demands and emotions that limit their future opportunities. In line with the Scottish Government's wider carer policy, it is intended that the grant helps carers look after their own health and wellbeing, improve their quality of life and have a life alongside caring.

Overall Carer's Allowance is not an adequate benefit (raised by Carers Trust).

143. The Scottish Government recognises that some people feel that the Carer's Allowance Supplement does not go far enough. The agreement reached with the UK Government provides funding for the benefits being devolved at their current levels. The Carer's Allowance Supplement will bring payments to the level of Job Seeker's Allowance and represents an additional investment from the Scottish budget. Any additional increases beyond this would need to be found from elsewhere in the Scottish budget .

Comments on Carer's Allowance eligibility and rates.

144. The Scotland Act 2016 provides flexibility to change the definition of a carer for the purposes of paying a benefit. To ensure a safe and secure transition for recipients, other than the additional payment to carers of more than one disabled child, changes to the current eligibility criteria will be kept as they are at the point benefits are transferred.

145. The independent DACBEAG, set up by the Scottish Government, will consider and make recommendations on longer term changes to disability and carer benefits. This will include consideration of changes to the level of award and to eligibility criteria, such as qualifying benefits, earnings threshold, situations involving multiple caring roles and the number of hours spent caring. This will take into account input from carers, carer organisations and wider stakeholders as well as the work of the Carer Benefit Advisory Group. Any changes to Carer's Allowance would need to take into account affordability, impacts on wider support and services for carers, and interactions with benefits which remain reserved to the Department of Work and Pensions.

Carer's Allowance should be available at Pension age/the 'overlapping benefits' rule should be removed.

146. The Scottish Government's ambition is to develop a Scottish carer's benefit through the new Scottish social security system, which is not a payment for care, but which provides some financial support and recognition for those who choose to, or who have had to give up or limit their employment or study because of caring responsibilities. Carer's Allowance and the State Pension both provide a benefit where the traditional source of income, for example employment, is no longer available.

147. Having an underlying entitlement to Carer's Allowance, as a result of the overlapping benefits rule, can increase entitlements to other means tested benefits (including Pension Credit). Throughout October, the Scottish Government ran a nationwide campaign aimed specifically at the over-65s, encouraging them to contact Citizens Advice Scotland, find out what support they may be entitled to and to get help with applying.

148. The independent DACBEAG will consider and provide recommendations and advice on longer term changes to carer benefits, taking into account the evidence that has been gathered to date (including through the social security consultation and work of the Carer Benefit Advisory Group).

Cold-spell heating assistance

It is not clear when specific proposals for Cold-spell heating assistance will be brought forward.

149. As with the other types of assistance, the Scottish Government's primary focus in relation to Cold-spell heating assistance is the safe and secure transfer of the existing benefit, and this must always remain the number one priority. That is why the Scottish Government believes that a phased approach is the right way to bring over the benefits. Timings, for the delivery of a new, Scottish Cold-spell heating assistance will depend on the implementation and testing of the new social security system's operations. Once implemented, the Scottish Government will protect the current Cold Weather Payment eligibility and ensure that those people currently in receipt of this important support do not lose out.

Winter heating assistance

The Scottish Government has not provided sufficient certainty, in relation to the eligibility criteria for Winter heating assistance.

150. The Scottish Government has always prioritised tackling fuel poverty and it has a clear aspiration to eradicate poor energy performance as a cause of it. That is why it has been clear that it will protect the Winter Fuel Payment, and extend the eligibility to families with severely disabled children. It believes this should provide the necessary assurance around eligibility for this important support. Furthermore, as the Scottish Government has made clear elsewhere in its response, along with the other assistance types, eligibility criteria for Winter heating assistance will be set out in regulations which will developed consulted on, and made subject to independent scrutiny and the super affirmative procedure.

151. As with Cold-spell heating assistance, timings for the delivery of Winter heating assistance will depend on the implementation and testing of the new social security system's operations. The Scottish Government is in the process of delivering its 2016 Programme for Government commitment to make half a billion pounds available over the next 4 years to tackle fuel poverty and improve energy efficiency. This means that, between 2009 and the end of 2021, over £1 billion pounds will have been allocated in total.

152. As the Committee's report acknowledges, the Scottish Government recently launched a consultation on a new fuel poverty strategy for Scotland, which closes on 1 February 2018. The consultation seeks peoples' views on matters such as setting new targets, putting in place a revised definition of fuel poverty and a proposed statutory target to effectively eradicate fuel poverty by 2040.

Disability assistance

The definition of disability should be widened or amended in order to ensure that people with certain conditions are eligible.

153. The language presently used in the Bill reflects that of the Scotland Act 2016. As the Scottish Association for Mental Health have highlighted, the 2016 Act's language is consistent with that of the Equality Act 2010. The Scottish Government wishes to point out that it is also consistent with the terms of international treaties including the UN Convention on the Rights of Persons with Disabilities, which defines persons with disabilities as:

"… those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others."

154. The DACBEAG are currently considering an appropriate approach for future disability benefits including fast tracking of benefits for people with a terminal illness. However, widening eligibility may not be straightforward as the current definition interacts with other devolved services. The Scottish Government believes differing definitions in different pieces of legislation both within Scotland and within the UK would cause uncertainty and confusion.

155. The Scottish Government will continue to work closely with stakeholders, with a view to developing further understanding about how the current process can be improved.

The current assessment process should be changed, with fewer face-to-face assessments, particularly for certain conditions.

156. The Scottish Government intends to make the assessment process fairer, focusing on standards and quality rather than case volumes. The first step in achieving this is its commitment that profit making companies will not be involved in carrying out assessments for disability benefits.

157. The Scottish Government will reduce the number of face to face assessments and reassessments, which are currently being carried out unnecessarily. It is exploring the potential to make better use of existing information within the health and social care sector and other public bodies. This will mean that the agency may use existing information to aid decision making and, where possible, to reduce the need for face to face assessments before making awards. This will help the agency to make better decisions, getting them right first time. Any systems developed will have robust safeguards to protect information about an individual's condition or diagnosis.

158. The Scottish Government has heard from individuals and stakeholders that there is too much focus on physical disability within the current system. It will ensure that the Scottish assessment process will work effectively across all conditions and that whoever undertakes assessments on behalf of the new, Scottish social security agency will provide a flexible service, including offering home visits if required.

159. The new Scottish social security agency will be built on a culture of dignity and respect and this will flow through to the culture and attitude of assessment staff. To ensure this, assessors will be appropriately and consistently trained to carry out their role effectively.

160. The Scottish Government has already engaged with stakeholders on duration of awards. The DACBEAG have been commissioned to consider and make recommendations to Scottish Ministers as to how the Scottish Government can improve assessments and award duration in Scotland. The Experience Panels will also be involved in co-designing processes as part of the development of the new, Scottish social security system.

The definition of terminal illness should not take account of life expectancy.

161. The Scottish Government is committed, as a minimum, to replicating the current system for people who have a terminal illness, which means including a process for fast-tracking certain applications. This commitment was confirmed by the Cabinet Secretary for Health and Sport in Parliament on 22 February 2017 ^[13] .

162. The Scottish Government is working closely with MND Scotland and other stakeholders with a view to developing further understanding about how the current process can be improved. It is open to further constructive dialogue on this issue during the Bill process. Widening eligibility may not be straightforward, however, as the current definition interacts with other devolved services and could cause uncertainty. The Minister for Social Security is due to meet with Marie Curie in the New Year to discuss improvements.

163. The DACBEAG are currently considering an appropriate approach for future disability benefits including fast tracking of benefits for people with a terminal illness.

The current system discriminates against people over the age of 65, who acquire a disability and become eligible for financial support.

164. The Scottish Government is progressing the safe and secure transfer of Attendance Allowance. Attendance Allowance will continue to be non-means tested and will help to ensure that people over the age of 65 are able to live as independently as possible.

165. The Scottish Government has heard from stakeholders and individuals that they would like a mobility component to be introduced, and it is currently exploring options to address this issue. Proposals will be tested with the Scottish Government's experience panels. The end to end process for Attendance Allowance, including the process for applications and assessments, will also be tested.

166. The Scottish Government has bolder aspirations for the medium to longer term. It intends to ensure that disability assistance interacts as effectively as possible with other devolved services, such as health and social care and housing. It will also continue to explore the potential for a disability assistance that is responsive to people's needs at different stages of their lives. The Bill provides the flexibility to substantially reshape and improve the way in which disability assistance is delivered in future.

Early-years assistance

As the Scottish Government's policy on the Best Start Grant ( BSG) has been developed, it should now be included in the Bill.

167. The Bill provides the framework for provision of Early Years Assistance but, in keeping with the structure for the legislation overall, the detail of the BSG benefit, including the assistance that will be given and the value of the payments, is set out in regulations.

168. An illustrative version of the BSG regulations, together with an accompanying policy narrative, were provided to the Social Security Committee on 29 September ^[14] . The regulations set out all of the rules in the same place, aiding understanding. This approach allows a degree of flexibility so that, for example, the detail of the benefit could respond to changes in other provision during early years if necessary.

169. The Scottish Government believes that its proposed approach of having the whole story in relation to the different assistance types told in regulations should help the Parliament's ability to scrutinise future Scottish Government policy.

The eligibility criteria for Early-years assistance, set out in schedule 5 could impact on a woman's financial autonomy.

170. The Scottish Government is considering what proportionate action it can take in the development of Early Years Assistance to recognise the financial issues affecting women. As part of routine monitoring and reporting, the Scottish Government will be putting in place a system to collect data on applications that will allow us to monitor the effectiveness of social security policy, including equality impacts.

There may be potential for a similar approach, to that of NHS Greater Glasgow and Clyde, in making automatic payments of some benefits.

171. The Scottish Government is designing the BSG to make it as accessible as possible. This will include a single application form for both BSG cash payments and the successor to Healthy Start Vouchers, so that applicants do not need to provide their information more than once. Capturing this information early in a child's life will allow the Agency to prompt applications for the second and third BSG payment. While a link between maternity and social security IT systems is not presently planned, where possible, information will be gathered electronically where this reduces the burden on the applicant.

Schedule 5 of the Bill (Early-years assistance regulations) does not make provision for what assistance is to be given.

172. There is no provision for the assistance to be given for Early-years assistance because there is no requirement for it. The frequency and value of the payments will be set out in regulations, alongside eligibility. In other schedules in the Bill, there is a need to allow for specific provision in relation to the assistance to be given (for example, to clarify that Funeral Expense Assistance regulations may specify items of expense that will, or will not, be covered by assistance).

Employment-injury assistance

New arrangements must ensure that no household is worse off.

173. The Scottish Government's first and guiding priority is to ensure a smooth transition of Employment-Injury Assistance, ensuring that people continue to receive them on time and in the right amount.

174. The Scottish Government currently has no plans to introduce a lump-sum payment for Employment-injury assistance. However, there is an opportunity to consider reshaping how the Industrial Injuries Benefits are delivered in Scotland in future and engagement with stakeholders has taken place on a number of issues (including lump-sum payments).

175. The Scottish Government understands the concerns raised by stakeholders (in particular, the treatment of lump-sum payments as capital, the complexities of the fiscal framework, the need to safeguard against fraud while giving recipients a choice in order to embed dignity, fairness and respect). The Scottish Government has, and will continue to, engage with stakeholders on issues associated with the transfer of Employment Injury Assistance and the future delivery of this benefit.

176. The Scottish Government is clear that people should not lose out financially as a result of any future changes made to the Industrial Injuries Benefits delivered in Scotland.

Employment-Injury Assistance should support people whose mental health has been impacted by their employment.

177. Industrial Injuries Benefits are paid if an individual is disabled as a result of an accident at work or a disease caused by an individual's job. Personal injury, under the Industrial Injuries Scheme, includes both damage or impairment to the body or mind. However, mental health conditions are not currently included in the statutory list of prescribed diseases.

178. The Scottish Government is aware that some stakeholders have called for provision to ensure Employment-Injury Assistance adequately supports people whose mental health has been significantly and directly impacted by their employment. Establishing causation to an occupation in such cases is complex and it is a matter that has been considered by the current Industrial Injuries Advisory Council. As yet, they have not found sufficient evidence to support a recommendation to include mental health conditions in the list of prescribed diseases.

179. That said, the Scottish Government is aware that a few European countries do have provision within their schemes for mental health conditions to be considered, and this is something that will be looked at when making future decisions about eligibility for these benefits.

The Scotland Act 2016 prevents the Scottish Ministers from being given advice by the existing Industrial Injuries Advisory Council ( IIAC).

180. The UK Government has decided that following devolution of the Industrial Injuries scheme, the IIAC will not provide advice to Scottish Ministers. It is clear from the Scottish Government's recent consultation that there is support for similar expertise to be established in Scotland to ensure that the scheme is delivered effectively. The Scottish Government has sought views from the IIAC on their role, membership and functions.

181. In its advice, provided on 12 December, the DACBEAG's working group also addressed issues presented by the withdrawal of the existing IIAC from devolved matters and the need for similar, replacement expertise to be available. As stated in the main document above, the Scottish Government will reflect on the working group's advice on these matters and will respond to the group directly, in due course.

Funeral expense assistance

People are experiencing difficulties with the time taken to process eligibility and make payments.

182. The Scottish Government has already committed to processing completed Funeral Expense Assistance ( FEA) applications within 10 working days, which will mean that people receive their payment considerably more quickly than at present. This will reduce the need for borrowing in the short term and the stress this can cause.

183. The Scottish Government wants to ensure that the process to determine eligibility and provide support for FEA is handled as sensitively as possible. It also wants to reach more people with the benefit, improve the application process and make eligibility clearer to people in advance of application.

184. The Scottish Government has provided FEA illustrative regulations to the Committee to help set out how it expects to use its powers in this area. The Scottish Government looks forward to hearing the Committee's views on these. The FEA illustrative regulations reflect the product of analytical evidence, and discussions to date with stakeholders. The Scottish Government has also shared these illustrative regulations with stakeholders and is seeking feedback from them in order to inform further policy development and service design.

185. A key change that the Scottish Government expects to make will be to change the way in which responsibility for funeral expenses is determined. Further details are set out in the FEA illustrative regulations. This change will widen eligibility for FEA to an estimated additional 2,000 people who would receive no support under the present system (a 56% increase). This means more people on low incomes will receive support and will take the total number of payments to approximately 5,600 per annum, once a steady state is reached. The Scottish Government expects to invest an additional £3 million per annum in addition to funding to transfer from the UK Government to support this widened eligibility.

186. The Scottish Government will also develop clear communications to help people understand FEA in advance of application and whether they are likely to be eligible to receive support.

187. In addition to launching FEA by summer 2019, the Scottish Government will also continue its wider work to tackle funeral poverty as set out in the Funeral Costs Plan ^[15] .