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

Part 2: Giving of Assistance by Scottish Ministers

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.

78. The Scottish Government notes the Committee's summary of the evidence received, 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 provided at Annex A. The Scottish Government hopes this is helpful in setting out its position ahead of Stage 2.

Types of Assistance ( Illustrative and Draft Regulations)

The Committee recommends that the Scottish Government confirms whether, and if so when, illustrative regulations will be available for each of the forms of assistance. The Scottish Government is also asked to confirm when it plans to consult on draft regulations for each of the forms of assistance.

79. As the Cabinet Secretary for Communities, Social Security and Equalities outlined to Parliament on 30 May ^[8] , the first wave of benefits to be delivered will be the Carers Allowance Supplement ( CAS), the new Best Start Grant ( BSG) and Funeral Expenses Assistance ( FEA).

80. Provision for CAS is made, in full, in the Bill and further substantive regulations (other than the usual commencement order) are not required. BSG will start delivery by summer 2019 and an illustrative version of the BSG regulations, together with an accompanying policy narrative, were provided to the Social Security Committee and a range of stakeholders on 29 September ^[9] . Further, public consultation on the draft regulations is planned for next year. FEA will also be delivered by summer 2019 and an illustrative draft of those regulations was provided to Committee and stakeholders on 30 November. Further, public consultation on the draft regulations is also planned for next year.

81. The Scottish Government believes that the process it has set out and is following, in relation to BSG and FEA, should provide a clear indication of its intentions in relation to future draft regulations (in particular, its commitment to extensive engagement in developing regulations and consultation).

82. The future publication of illustrative draft regulations will be in line with the delivery timetable, which is still to be determined for the next wave of benefits. The Scottish Government would want these to be developed in accordance with the proposed super-affirmative procedure (discussed at paragraphs 15 to 16 above) and with the involvement of an independent, expert scrutiny body.

Form of Assistance

The Committee welcomes the Minister's reassurance that an individual will always have the choice of whether or not to receive assistance in a form other than cash and that cash will be the default. We welcome the Minister's commitment to bring forward amendments at stage 2 to make that clear in this bill.

83. The Scottish Government's intention has always been for the individual to have a choice and it can confirm, as the Minister for Social Security indicated to the Committee on 2 November ^[10] , that an amendment to the Bill will be lodged at Stage 2.

New Benefits

The Committee notes the Scottish Government's position. The Committee asks the Scottish Government to confirm that the social security principles and charter will apply to any provision in primary legislation to create a new benefit as they do to the forms of assistance set out in this bill.

84. The Scottish Government notes that a general power to create new benefits would give both this and any future Scottish Government an extremely wide power to create, by regulations, any new benefit that could be conceived of within the span of devolved competence.

85. To put this in the context of Committee's overall scrutiny of this Bill, on the one hand, there are concerns about the balance of primary and secondary legislation, whereas on the other, there are questions as to why the Scottish Government has not included a power to make secondary legislation to create new benefits. If more detail is asked for on the face of the Bill, then the Scottish Government believes that advocating the inclusion of a regulation making power as extensive as this is an opposing proposition.

86. The Scottish Government believes that the Scottish Parliament in general, and the DPLRC in particular, would have issues with the breadth of such a power and the scope that it would potentially provide for the Government of the day to commit to spending very significant sums via secondary legislation.

87. The Scottish Government can confirm that the Bill, as currently drafted, allows for the social security principles and charter to be applied to new types of social security assistance created under Part 2 of the Bill. This is because section 2 connects the charter (which must reflect the principles) to the exercise of the Government's functions in the " Scottish social security system". Section 7 defines the " Scottish social security system" to mean the system for giving assistance under Part 2 or Part 3. Therefore, the principles and charter will apply to giving any new type of assistance under those Parts as they apply to the giving of the types of assistance presently set out in those Parts.

Short-term Assistance

The Committee welcomes the clarification from the Minister that short-term assistance will ensure that the level of financial assistance will be retained until any process of appeal has been concluded. The Committee seeks clarification from the Scottish Government on whether short-term assistance will be repayable.

88. The Scottish Government welcomes the Committee's acknowledgment of the policy intention that short-term assistance will maintain payments at the original level until the re-determination and/or appeal process has been exhausted. The Scottish Government will reflect carefully on the evidence submitted to the Committee and will consider whether this section of the Bill could be clarified further ahead of Stage 2.

89. In due course, as it will do for the other types of assistance, the Scottish Government will consult on drafts of its regulations in order to ensure that the policy intent is delivered by the legislation.

Applications and Determining Entitlement

The Committee notes the evidence calling for the Bill to include a timescale for making a determination and asks the Scottish Government to respond. The Committee is of the view that where a request is made by the agency for further information and it is not received, a determination should be made on the available evidence.

90. The Scottish Government acknowledges the evidence put forward by stakeholders and agrees that clear timescales should be set. The Scottish Government intends to set out the timescales for making determinations within the regulations for each of the specific benefits. Timescales are likely to be different for each benefit due to the differing evidential requirements and the processes by which the social security agency can obtain this information or evidence. It is therefore not possible to specify timescales to make a determination until the detailed design work has been completed for each of the devolved benefits – for example Best Start Grant, Winter fuel assistance, and Disability assistance are all very different benefits requiring different levels of detail, in terms of the information that will need to be provided, and different sources for that information.

91. Where there is a requirement to collate evidence from a third party, who may not have any statutory requirement ( i.e. Health Boards or GPs) to respond within a given timeframe, it would significantly impact the agency's ability to come to a determination within a defined timescale. A further factor out-with the agency's control is where eligibility for a benefit is linked to a Department for Work and Pensions qualifying benefit which the Scottish Government has no control or influence over. There may also be instances whereby citizens advise they require a longer time by which to obtain requested evidence, and in these instances, the agency would expect to allow citizens this additional time without the processing restrictions of defined timescales.

92. The Scottish Government welcomes the Committee's recognition that, in circumstances where the agency has exhausted attempts to get the evidence or information needed to make a determination, decision makers have a route by which to make a determination based on all available evidence.

Re-determinations and Appeals

The Committee agrees that regulations should set a time limit within which the agency is required to complete the re-determination process.

93. The Scottish Government welcomes the Committee's agreement to setting time limits for the re-determination process in regulations. This will be taken forward as part of the service design process, working in collaboration with the Experience Panels, stakeholders and individuals.

The Committee acknowledges concerns about the two-stage appeal process and asks the Scottish Government what further assurances it can provide that this will not create barriers for those wishing to challenge a decision. Whilst acknowledging the concerns, the Committee accepts that the agency should have an opportunity to correct any mistake, before a case proceeds to an appeal. The Committee notes that re-determination means an application will be looked at afresh. A majority of the Committee agrees with the Minister that it should then be for an individual to decide whether to continue with a challenge to the First-tier Tribunal.

94. The Scottish Government is pleased that Committee accepts that its new, Scottish social security agency should have the opportunity to correct errors before a case proceeds to appeal. The Scottish Government's policy intention is not to discourage or put in place barriers for appeals, but to focus on getting the initial decision right first time, thereby removing the need for an appeal.

95. The Scottish Government is building an evidence base of peoples' experiences of the current social security system. This will allow the Scottish Government to design a re-determinations and appeals process which is informed by individuals' experiences, including their previous experience of the current, Department for Work and Pensions process.

96. The Scottish Government believes that this approach will help it to realise its vision for a rights-based, user-centred system. The fixed timescales which will be introduced along with the Scottish Government's proposal to maintain the level of the individual's benefit payments, by making Short-term assistance payable during appeals, are examples of policies which are intended specifically to remove perceived barriers to people who may want to challenge decisions. If, in the course of this work, the evidence suggests that there are other barriers in the proposed process, then the process will be amended to remove them.

97. The Scottish Government welcomes that the majority of the Committee agrees it should be for an individual to decide whether to continue with a challenge to the First-tier Tribunal. The fact that people have a right to choose whether they wish to continue to proceed with an appeal is a fundamental aspect of the rights-based approach that the Scottish Government is building. The Scottish Government will continue to reflect on the issues raised by stakeholders, in relation to re-determinations and appeals, ahead of Stage 2.

Recovery of assistance given in error

The Committee welcomes the stated intention that overpayments resulting from official error will not normally be pursued, except in exceptional circumstances. The Committee draws the Scottish Government's attention to the evidence received on this point and asks it to consider whether the bill adequately reflects this policy.

98. The Scottish Government welcomes the Committee's acknowledgment of the policy intention that official error will not normally be recovered, unless there are exceptional circumstances (such as a large or obvious overpayment).

99. The Scottish Government will reflect carefully on the evidence submitted to the Committee, and will consider whether this section of the Bill could be clarified further ahead of Stage 2.

Offences and Investigations

The Committee supports calls for the bill to be clarified to ensure that genuine errors or misunderstandings will not result in someone being criminalised. It is the Committee's view that the bill does not reflect the Scottish Government's stated policy intention.

100. The Scottish Government welcomes the Committee's acknowledgment of the policy intention that genuine errors or misunderstanding will not result in someone being criminalised. When an inadvertent error is made during an application for assistance, or there are mitigating factors in not notifying a change in circumstances, the Scottish Government is clear that such matters will not be treated as criminal offences. The Scottish Government believes that the Bill provisions have been drafted with this principle in mind and will allow a clear distinction to be drawn between fraud which (if proved) is a criminal offence, and an unintentional error by the individual, which they could not have reasonably expected to affect their entitlement.

101. An offence will only be committed if an individual has intentionally misrepresented, or failed to notify a change in circumstances which the social security agency has told them they have a duty to notify. The agency will be clear with people upfront about the reasons they have been awarded assistance, what types of information and changes of circumstances they should report, and how they should report them.

102. The Scottish Government recognises the particularly sensitive issues around social security offences and takes this responsibility very seriously. It will continue to reflect carefully on the evidence submitted to the Committee, and will consider whether this section of the Bill could be clarified further ahead of Stage 2.